Intellectual property is a sometimes nebulous concept. You can’t put your hands around it, and often you can’t see it, but it may represent the most valuable asset of your business. It may encompass essential aspects of your services or products, which may allow you to carve out a unique identity that clearly distinguishes you from competitors. Consequently, IP must be closely guarded and protected from misappropriation.
Protection is especially important in due diligence discussions arising from opportunities to buy, sell or otherwise fuse operations with outsiders. To protect your IP in these situations, you should, after appropriate confidentiality agreements are signed with potential suitors, conduct an internal evaluation to ensure all necessary patent, trademark, copyright or other registrations have been completed, are current, and adequate procedural measures have been implemented to limit access to only those individuals who have a need to know and use the information. Your evaluation should encompass the following:
· Completion of a list and description of all patents, trademarks and copyright registrations and applications.
· Isolation of originals and copies of all patent, trademark and copyright applications, registrations and related documentation with a designated employee who serves as a gatekeeper.
· Completion of a list of all proprietary rights, trademarks, service marks, copyrights or other information that is not protected by registration, including trade secrets, processes, computer or other programs and confidential information relating to operations, employees, suppliers and customers.
· Establishment and distribution of written policies and procedures addressing the IP protection and limiting access to IP by employees and others. · Execution of written confidentiality, nondisclosure, and/or proprietary rights assignment agreements with employees.
· Maintenance of records relating to current, past, or potential claims or disputes concerning IP owned or used by your company.
These protective measures should be implemented by all companies to protect against misuse, reproduction, misappropriation or dilution of IP rights by employees, ex-employees or others. Trade secrets are particularly susceptible to dilution because many companies fail to establish adequate protective procedures, thereby minimizing any subsequent claim of protection following another’s use of IP that has been made available on an indiscriminate basis. Please contact us if you desire guidance in protecting your IP – it’s easier to keep the cat in the bag than it is to try to put it back in once it has been let out.