As the owner of an intellectual property right, you have a full gamut of actions you can take to protect your intellectual property rights. Sometimes the strategies enumerated below need to be executed together for a fool-proof protection of your business’ intellectual property. It is especially daunting to protect your business’ intellectual property in a workplace environment with a number of employees who may divulge your trade secrets and other intellectual properties the business may have.
There are two types of intellectual property rights; those that require registration, such as designs, patents, and registered trademarks. And those that do not require registration for them to accrue, such as copyright. For the rights such as patents, registered designs, and trademarks, it is necessary to apply for registration before making use of that which is to be registered. In the case of patents, it means filing an application with the intellectual property office before disclosing the invention to the general public- ‘disclose’ here includes showing the invention to even a single member of the public out of confidence, or receiving an order for the invention. Trademarks, on the other hand, can be filed after a trademark has been used. It is prudent to apply to register a trademark in the soonest time possible before use is even contemplated. Registration for trademarks can be done at the Singapore Trademarks Registry. Lastly, for registered designs, applications are to be made before the designs are disclosed to the public.
2. Non-Disclosure and Confidentiality Agreements/Contract
A large segment of the value of your business derives from the intellectual property due to its (IP) pervasiveness in your everyday operations. Therefore, you should, as a business, endeavor to protect the intellectual property on a commercial level. It is, therefore, prudent to use written contracts whenever possible using your intellectual property to varying degrees where relevant. One such contract is the non-disclosure and confidentiality agreement. Non-disclosure and confidentiality is key to any type of deal- not just for technology, IP and trade secret issues (which are likely to be part of the deal) but also for any other business strategies, financial and accounting information and new product ideas, all of which will determine if the deal will go forward or stall. Non-disclosure and confidentiality agreements are enforceable in Singapore.
3. Employee and Agency Agreements
Normally, employees and agents employed to perform tasks for the company use the business’ IP and may also contribute to and help in creating the company’s IP. Therefore, it is proper to have the IP covered in all the agreements covering such aspects as patenting of innovations, ownership of copyright and post-employment provisions in respect to the return of the intellectual property and confidentiality. In Singapore, the law stipulates that where work is made by an employee during the course of his employment, the copyright should vest in the employer unless there is a contrary agreement. But to insulate your business from any unforeseen actions, the employment contract should have a clause stating that all intellectual properties, including copyright works, vest in the business. If you license your intellectual property to another company or business which is an employer, you ought to contractually oblige that company to introduce particular clauses into the employment contract between it and its employees. These clauses should identify the parties which will have permission to use the intellectual property as well as the security procedures put in place to restrict its unauthorized use.
4. Proactive Measures to Stave off Infringement
Your business can deploy a range of proactive measures to stave off the infringement of your intellectual property rights. These measures can and should include the use of software access codes, or physical protection measures, or even data ‘seeding’ so as to be warned at the instance of infringement. There are other methods the business can employ to detect infringement of the IP rights. These can be by a periodic review of the competitor’s products and advertising.
5. Keep Proof of Originality
As a precaution, in case of a dispute in future, keep solid proof pointing to you or your company as the brainchild of the intellectual property. There is one widely recognized way to go about this: write down the idea, what it does and how it does it; draw a clear and detailed picture of the object- in case it is an object- or take a photograph of its prototype; make copies and put the prototype in a sealed envelope addressed back to yourself which you will mail to yourself by registered mail; once you get the envelope, do not open it- just put it in a secure place. That will serve as convincing evidence in future of the time, date and place of original thought.
6. Keep Your Idea a Secret
Generally, your idea should be guarded with utmost secrecy. Don’t share it with anyone except those you hope to help you in developing the idea. And just in case it becomes necessary to share it with someone else, then let both of you sign a non-disclosure and confidentiality agreement outlining the idea or object alongside details about yourself and the person with whom you are sharing the idea. This agreement ought to be signed in your presence, and if possible, witnessed. Most importantly, it should be signed so as to serve as evidence of the time, place, and date of disclosure.
7. Trade Secret
It should be understood that trade secret is not synonymous with keeping your idea a secret (number six above).
If you can keep a secret, then your monopoly over an idea or certain intellectual property right may be eternal. But once the secret gets out, you may never get it back. To add salt to injury, it is impossible to sue and rake in enough damages from whoever breaches that confidentiality. Thus, if you have an idea you believe cannot be reverse-engineered, then you don’t need to enter into patent bargains, just sit pretty and work on never disclosing that idea to anybody else. Classical examples of best-kept trade secrets are the recipe of the coca cola drink and the alcoholic beverage Chartreuse. The formulation of Chartreuse is only known by two monks.