Simple & Effective Ways to Protect Your Intellectual Property

by:

VIJAY SARDANA

Techno-legal Expert 

Advocate, Supreme Court of India

YouTube Channel: @VijaySardana.INSIGHTS

As soon as you think of investing in research for a better future, you have to plan for its protection from unauthorised use as well. 

It is a common experience that when any new invention comes to light, the investors' initial thought may be to let the world know about the achievement and breakthrough. While shouting your success from the rooftops is appealing, before you do that, you need to consider how best to protect the same, what you have developed and invested to develop.

Important point to note that legal options like Patents and copyrights can offer you some security, but don’t always mean that your design is completely protected, as copies can certainly emerge. 

Based on the author's experience, there are several other simple ways which you may consider and they have their own strengths. 

Below are some less common but very effective ways to protect your intellectual property i.e. inventions, data and creative work.

Some of them are mentioned below:

1. Patent lateral meaning is disclosure, so don't File Patents

The word patent originates from the Latin ‘patere’, which means "to lay open" i.e., to make available for public inspection. It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. 

The most uncommon way to protect intellectual property is not to file patents. Coke never filed a patent for its formulation.  Filing patents provides the recipe for how a product or service can be created. Once a product recipe is published, one can create a similar product with workarounds to not violate intellectual property rights. The second method is to modify the standards, and then standardise the idea with a standards association so that others are blocked from creating such an ideal example- UHT standard in milk processing. 

2. Maintain a very lean team with proper checks

Emerging innovations in technology and related sectors will always be prone to theft like plagiarism. To some extent, that's what drives innovation's evolutionary jumps in such quick succession because many innovations are just top-ups on the existing options. These are also used for evergreening the patents as well. Having this relentless innovation cycle keeps your competitors constantly catching up. This requires your company to run like a sprint runner — lean and fast. The main essence is time i.e. speed. 

3. Create Teams even under different heads and locations, if possible.

Many companies have more than one research centre, they divide the activities into unit operations and teams are separated geographically. The purpose is that none of these teams have access to the complete product, other than the strategic advisors or partners.

To pilferage the whole product the security and sanctity of our product, several of these teams would need to work together to steal the total product. 

Separation of scope and duties is a basic tenet of information security, and we have to practise what we preach. This is very crucial and top management must be involved because of resource planning and allocation requirements.

4. Sometimes Open-Source it to have better ideas:

It may seem counterintuitive, but if planned carefully, one of the best ways to build a competitive advantage is to open-source your technology and tap into a broad community of researchers and developers. This way, companies can focus on the added value on top of the already developed technology stack that remains proprietary and can execute with speed and agility. 

Caution: This effort is sabotaged by the ego of the people involved in shortlisting and selection because in-house teams resist external ideas and discredit the better ideas and than their own concepts. 

5. Prevent and avoid Joint Ownership

You have no control over the other person or the organisation. Most agreements talk about joint ownership, but this must be avoided. Make sure to avoid joint ownership of intellectual property at all costs. Experience says, that joint ownership creates problems later on when the growth paths of partners are different, which could make it difficult to protect, hurting all parties involved.

6. Get Exact-Match Domains - invest now and save the future

Copying artwork and trade names is very common. Be careful when selecting the names as brands and designs. There is no place for emotions, go with strong logic. One of the best intellectual property protection methods for trademarks is to protect all the possible exact-match domain names. This is a cost but worth investing if you have proper expansion plans. While it is a costlier option in the short run, the windfall of benefits in the long run is unrivalled. This you may see around in the marketplace. 

7. Strong Access Control with Safeguards

From day one, develop these systems. Store manuscripts with all creative ideas in a safe place. Oral discussion and no proper and specific documentation details will hurt the outcome, quality and reliability of the innovation. Timelines and accountability must be added to every discussion. This will help in access control and review of the progress to ensure speed.

All documents should be protected by an identity and access management solution.  Global experience says 81% of breaches are due to compromised credentials. 

The author was the Chairman of the Technology Committee of the Board of Directors of the leading financial company and also Stock exchange and experience says it’s essential to store intellectual property on a system that uses adaptive authentication with risk analysis, or at least two-factor authentication. Passwords alone are obsolete. The location of the server and other security measures are vital. 

8. Get Strong Non-Disclosure Agreements (NDA)

All employees, vendors, partners and associates must sign the Strong Non-Disclosure Agreements. The author’s experience in negotiating contracts on behalf of clients indicates that in many agreements, the NDA is very casual and full of holes. This makes them ineffective. 

If required, get assistance in creating well-written non-disclosure agreements. Also, look at any other agreements which you may be using in your business to make sure they cover your intellectual property. These could include employment agreements, licences, and sales contracts. If required, revise them. 

9. Out of Sight, means out of mind is an effective option. 

It is difficult for many because bragging brings status within the system but also attracts pilferage threats and dangers. 

Classic legal ways of protecting IP often involve patenting or copyrighting works and techniques and vigorously defending them in court. Modern techniques involve using Digital Rights Management systems. The somewhat uncommon way that is still effective is to keep things secret strictly limit the exposure to the trade secrets that make up the IP, and design the system to keep them hidden. The anonymity of the researchers is the best defence in an information-hungry world. Remain Quiet.

10. In many cases, Offence is the best defence: 

Publish IP widely with attribution to prevent pilferage and undue commercial gains by competition.

The author was heading the business development of a large packaging multinational company, and the information about key patents was made part of every communication in all forums. This created goodwill for the company and also respect for the innovative technology. How to write and pronounce the technology name was also informed to all stakeholders. 

While patents require being the "first to file" as per the law these days — and that's still the best way to protect your non-trade secret IP but another common way to ensure that your IP is seen as yours is to publish and reference it widely, always ensuring that your company's name is attributed to where it is mentioned. The more you are seen online with your IP, the more support your parents have.

The way forward:

Hope these are some of the ideas which may help you in relooking in your IP policy and plans.

Design an effective training program on these sensitive issues for your all team members irrespective of their role in the company. The leakage can be anywhere.

Future depends upon innovations, if you are not innovative in every aspect of your business, your shareholders' future is at stake. 

If you need help:

In case any help is required, in developing:

a. In-house RESEARCH PLANNING,

b. TRAINING and

c. Related POLICIES,

Pl. feel free to contact the author. 

Feel free to share this article and also provide your feedback as well.

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