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Protection of Intellectual Property: Safeguarding Your Ideas. Sharon R. Klein, Esq. (949) 567-3506 IP Protection Preliminaries. Maintain Confidences Ownership IP asset/valuation Competitive advantage. Basic Forms of Intellectual Property (IP). Trade secrets

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Protection of Intellectual Property:

Safeguarding Your Ideas

Sharon R. Klein, Esq.(949)

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IP Protection Preliminaries

  • Maintain

    • Confidences

    • Ownership

    • IP asset/valuation

    • Competitive advantage

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Basic Forms of Intellectual Property (IP)

  • Trade secrets

  • Confidential information

  • Trademarks

  • Copyrights

  • Patents

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What is a Trade Secret?

  • Formula, pattern, business information, customer information, methodology, strategic plans, etc.

  • Commercial value

  • Unlimited duration as long as secret

  • Automatically granted - no legal action required

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Trade Secret Notice

  • This [program, manual, etc] is proprietary to Pepper and may be used only as authorized in a license agreement controlling such use

  • For RFP Responses and confidential product information, the notice should read as follows:

    • This [manual, document] is proprietary to Pepper and may be disclosed to third parties only with the prior written permission of Pepper

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What is Confidential Information?

  • Trade secret

  • Oral or in writing

  • Given in confidence

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What is Not Confidential?

  • Public domain

  • Already known

  • Independently obtained

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  • Confidentiality and Non Disclosure

  • Work for Hire

  • Non Competitive

  • Assignment of Inventions

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What is a Trademark?

  • Any word, design or device which identifies and distinguishes products/ services of one company from another

  • Rights originate upon use in U.S.

  • No “significant” legal action required

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What is a Trademark?

  • Types of Marks - There are three types of marks, which are used as follows:

    ® - the mark has been registered with the Patent Office; it may be a service mark or a trademark

     - an unregistered trademark; used for equipment, software, etc

    SM - an unregistered service mark; used for services and some software

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Types of Marks?

  • Word marks

  • Design marks

  • Slogans

  • Initials

  • Trade dress

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What is a Copyright?

  • Original work of authorship

  • Software code, manuals

  • Exists from the moment created

  • Protects “expression” not functionality

  • No “significant” legal action required

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  • Compilation protected under copyright

    • Order, form, arrangement

  • Not substance of database

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What is a Patent?

  • Legal right to a new, innovative idea or invention

  • Entitles inventor to exclude others from making, using or selling

  • Must be granted by government

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Business Method Patent

Patent which protects the practical application of a formula, calculation or process to produce a useful, concrete and tangible result.

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IP Pitfalls

  • Incomplete Documentation

  • Sloppy Operating Procedures

  • Lack of Training

  • No Culture of Confidentiality

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IP Ownership

  • Patents are owned by the inventors

    • Unless assigned to company or other entity

  • Copyrights are owned by the creators

    • Unless assigned or created by an employee as a “work for hire”

  • Multiple creators/developers = joint owners

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Risks Of Joint IP Ownership

  • Each party has full rights

    • Unless one party agrees to give up rights, all parties can use the invention/work and license it to others

  • Difficult to enforce rights against others

    • All owners must agree to be co-plaintiffs in infringement litigation

  • For patent applications, difficult to prosecute with USPTO

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Research Funded By U.S. Government Agencies

  • Must disclose inventions to the funding agency

  • Must file a patent application

  • Funding agency retains a license

  • Funding agency has “march-in rights”

  • Must (try to) manufacture the invention in the U.S.

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Action Plan

  • Prioritize the Innovations

  • Decide on the Best Suited IP Tool

  • Inform and Educate People

  • Create and Follow Standard Operating Procedures

  • Seek Advice on Documentation

  • File for Relevant Protections