BACK WHEN I WAS AN MSP, the topic of protecting our intellectual property rarely if ever came up in conversation. We were too focused on acquiring customers, streamlining processes to provide better service, and managing our employees. Now that I’m an attorney, I spend much of my time educating MSPs and business owners about the importance of protecting their IP.
IP can be broken down into four main groups:
- Patents provide monopolies on inventions for up to 20 years from the date of filing. They can create a unique competitive advantage provided you’re careful to pursue patent protection before bringing a product to market or disclosing it publicly. If someone copies your idea after it goes public, there may be nothing you can do about it.
- Trademarks protect your business name or logo, and by extension your ability to operate under your name and prevent others in your area from using a similar one. This is vital for branding purposes and can greatly affect the value of your company. Trademarks have no expiration so long as you continue doing business.
- Copyrights offer protection for original works of authorship, including software code and instruction manuals. Though typically thought of as applying only to musicians, artists, and filmmakers, they in fact cover all forms of creativity and could be very important for your business if you spend a lot of time developing training programs, writing applications, or creating unique designs for service and product offerings.
- Trade secrets protect your “secret sauce,” the special way you do something that you do not want anyone outside your organization to understand and imitate. All of the other IP protections require public disclosure, but trade secrets are unique in that they must be kept confidential in order to qualify for protection. They can last forever as long as they’re not disclosed outside your company.
All four types of intellectual property require both protection and enforcement. Protection is about clearly articulating your rights and requirements, and includes incorporating confidentiality clauses in employment agreements, ensuring that employees and work-for-hire contractors assign any IP they create on the job to you, and collecting signatures on nondisclosure forms. The most important thing about protection is to discuss it, within your company and with an attorney, before you develop IP, not after.
Once your IP is protected, it’s up to you to enforce your protections against possible infringers. This too requires a conversation with your lawyer about how to ensure that you do not try to enforce too early or too late. Trying to enforce too early could mean that there are not enough damages to justify the cost of enforcement. Enforcing too late could mean that you have lost your chance to protect your rights.
Protecting your IP can greatly increase the value of your MSP business and preserve your competitive advantage. Having the right strategy is vital, though, and the sooner you formulate one in partnership with an attorney the better. Oftentimes in business, waiting is a good strategy. When it comes to protecting your IP, waiting is the worst strategy. You created it. You own it. Now you must protect it!
THOMAS STANTON is founder and president of Stanton IP Law Firm, P.A., in Tampa, Fla. Thomas became an attorney after spending 10 years in the IT field. He earned a JD degree from Stetson University College of Law and acquired an LLM degree in international economic law from the University of Toulouse, France. He is a licensed patent attorney in New York and Florida and focuses on cutting-edge computer technologies, related intellectual property protection, and high-tech startups.
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