Innovation is the key to improvement, refinement, and advancement in just about every sector and industry—but none makes the connection between innovation and progress more clearly than the tech sector.
However, with every tech company and startup looking toward innovation, protecting intellectual property (IP) can become even more critical. Below, attorney Robert McKinley, attorney explains some factors to consider when assessing how to strike a workable balance between creating new products and protecting your IP.
Balancing IP with Innovation
Protecting IP in the tech field isn’t a new problem—in fact, it predates the electric lightbulb.
In the late 1800s, several revered inventors—Thomas Edison, George Westinghouse, and Nikola Tesla—battled over the best means to transmit electricity: alternating current (AC) versus direct current (DC). Edison was “team DC,” while Westinghouse was a proponent of AC. Both methods had their benefits and drawbacks; because DC couldn’t travel long distances, it would require a significant increase in coal-powered infrastructure, while AC transmitted electricity at a much higher voltage (and a higher risk of injury to those who came in contact with it).
Both Edison and Westinghouse engaged in a scorched earth campaign against the other, which prompted another invention—the electric chair. It was only after Tesla developed a way to harness and broadly distribute AC that Westinghouse’s method was deemed the superior one.
This battle illustrates the tension between innovation, which necessarily requires a level of openness to and collaboration with others in the industry, and the desire to protect one’s own trade secrets (including protection from being discredited).
Protecting Intellectual Property
The European Union Intellectual Property Office (EUIPO) recently published a study indicating that small and medium-sized enterprises that own IP rights have a significantly higher revenue-per-employee percentage (68 percent) than those that don’t own any IP rights.
Just a few of the ways intellectual property rights are important include:
- Protecting a product or service’s unique nature
- Legally empowering the idea to come to fruition by cracking down on theft and counterfeiting
- Giving similar businesses a competitive advantage
So how should companies get started? And when in the process should a particular idea be protected?
IP protection is critical at just about every stage of the innovation process. At the outset, it can make sure that you aren’t infringing on another company’s IP—the last thing you want to do is get to the late stages of a project only to realize that another company has already invented and marketed it.
On the other side of the coin, spending years and millions of dollars on the R&D process and then having your (unprotected) idea stolen out from under you can be a crushing blow that some businesses may not survive. McKinley explains that there are important IP steps to be taken during both main stages of taking a product to market: R&D and commercialization.
During Research and Development
The IP tools that will come in handy during the R&D phase include patents, copyrights, non-compete agreements (NCAs), non-disclosure agreements (NDAs), and employment agreements that insure any inventions created by an employee are owned by the company. These can help secure your business’s right to certain ideas or creations and help ensure that anyone who leaks any trade secrets or begins to work for a competitor is appropriately sanctioned.
McKinley explains that these IP protection components “can often be bundled in a ‘brand protection platform’ that provides holistic protection for the innovation instead of coming at it in a piecemeal way.”
During Marketing and Commercialization
Once your product has been introduced to the market, you may be able to register certain unique components or features of the marketing element of the commercialization process. Think of McDonald’s “Big Mac” or Nike’s slogan, “Just Do It.” Having a unique angle or hook can improve marketability while also ensuring that no other companies attempt to ride the coattails of your hard work by pirating your IP.
In Closing
Registering and protecting your IP can help foster innovation by removing the cloak of secrecy over your company’s activities and providing for the free flow of information. IN exchange for such disclosure, the U.S., and almost every country in the world, grant inventors patents which are a right to exclude others from making your invention for a limited time. Having patents and trademarks filed early in the research and development process can give you the tools you need to fight against infringers, trade secret theft, counterfeiting, piracy, and other forms of fraud. An experienced IP attorney can help you create a plan that’s tailored to your unique needs, ensuring that your brand and products remain protected throughout the innovation process.
About the Author:
Robert McKinley is a practicing attorney, degreed Electrical Engineer, and born leader who serves his clients with integrity and an aggressive pursuit of their best interests. He graduated from Widener University School of Law, receiving his J.D. He was a member of the Moot Court Honor Society, Trial Advocacy Honor Society, and Phi Delta Phi International Legal Fraternity for Scholastic Achievement. He has built a 25-year law career specializing in intellectual property, patent & trademark litigation and local counsel.
No Legal Advice or Attorney-Client Relationship: These materials have been prepared for general informational purposes only and are not legal advice.
