Don’t Put It in Writing

No TextingDo you know that saying, “Don’t put it on facebook if you don’t want your Grandmother to see it”?  Of course you do.

We all should know by now that if you put something on the web, like that picture of you drinking at a frat party (underage!), it NEVER goes away and practically anyone who cares to look can see it whenever they feel like it.

As we over-share everything in our lives on social media and as a whole generation only communicates in 140 characters or less, one of the biggest legal headaches is keeping emails, texts, and other written communications out of the hands of opposing counsel.

I know this thing is nothing new.  I had some issues when I was working in-house.   I remember some employees sending emails to convey some less-than-favorable news to the department, rather than allowing me to speak with the head of the department about the sensitive matter.

Those things happened, and the company would deal with it.

So what’s changed?

I left corporate behind in 2006.  There was no social media to worry about.  We weren’t texting junkies.  We actually knew how to use the phone, and more often than not that phone was not mobile, and it was owned by the company.

Things are different today.

We put more in writing today, every day, than ever before in human history.  We do it from our mobile devices from anywhere in the world.

Seriously, can you imagine the legal headaches when the texting-only generation makes its way into the workforce?  These young people can’t stop texting long enough to drive a car.  Calling someone is an arcane ritual that their grandparents did.  Do we think they’ll think twice before sending out that smoking gun email or text that makes opposing counsel dance around his office?

I can just see this text from Engineer 1:

STOP ALL WORK!  I think we infringe XYZ Company’s patent.

And Engineer 2 responds:

Attorney Smith told me that there’s a 70% chance we infringe.  I think it’s OK to keep working on that project.

Why are these texts so scary for attorneys?

If XYZ Company sued for patent infringement, this sort of text exchange would be a great piece of evidence to prove that the Defendant willfully infringed the patent.  It shows that Defendant’s employees knew about the patent, knew they possibly infringed the patent, but decided to move forward with the infringing product anyway.  If the Court determined that Defendant willfully infringed, Defendant could be forced to pay triple damages to XYZ Company.  That’s a lot of money.

To avoid this situation, the attorney would normally convey the message without reducing it to writing, although a written communication from an attorney to the employee might get the benefit of Attorney-Client Privilege.

HR and legal departments should start thinking about training programs that teach one of the golden rules of business.  For those of you over 40, you might remember it…“If it’s bad news, don’t put it in writing.”

Too many people don’t know to pick up the phone to pass on the bad news.  We’re so used to communicating via email and text that we’ve forgotten the consequences of putting too much in writing.

In the corporate world, it’s not your grandmother or a future employer you have to think about.  It’s opposing counsel.  You need to be thinking, what would happen if our legal adversary saw this?

I guarantee opposing counsel will embarrass you more over that errant text regarding patent infringement than any drunken picture of you ever could.

Don’t Get Your Legal Advice on Twitter

What do you believe to be true about intellectual property?

Are your beliefs based on truth, myth or falsehoods?

You might be surprised to find out that a lot of the ‘truths’ about IP that you believe are actually falsehoods perpetuated by the ignorance and half-truths of the media, the internet, other well-meaning entrepreneurs, and even IP practitioners themselves.

In fact, the information you have learned somewhere along your journey could be hurting the quality, quantity, and value of your intellectual property.

How do I know this?

Let’s look at a twitter exchange that I had last weekend.

Tweet from a successful entrepreneur:

“Founders: when starting out, in most cases, don’t worry about getting patents because you probably don’t have the money to enforce them.”

To which I replied:

“Naive advice. It takes 3+ years to get patent, so can’t enforce for years. You may have $$ and need to enforce in 5 years.”

Our exchange was seen by an entrepreneur from Canada who inquired:

“I’ve also been thinking this way too.. It’s a toughy. Is it worth $3,000 to apply provisional with fee to start?”

To which I responded (because originator of the conversation surely did not know how to answer the question):

“My first question would be why are you spending $3000. The fee is only $125.”

(EXPLANATION: The filing fee for a provisional patent Application in the United States is $125.  With a little bit of information, and following the instructions on the form, you don’t need a lawyer to file a provisional application.)

The Canadian entrepreneur replied:

“Ah, I found it. But typical utility, sm entity + lawyer fee is usually $1500+ no?” (with a link the USPTO website.)

At this point, I had to wonder, where was he getting these numbers?   Utility patents typically cost about $6000 on the low end, and up to $15,000+ on the higher end.  Depending on the technology involved that price could be a lot higher.

This is what I mean by truths, myths, and falsehoods.  Obviously, what this entrepreneur believes to be true about the costs of patents is actually false, and his misinformation will influence the decisions that he will make about whether or not to file for patent protection.

What else when it comes to patents does he believe to be true?

As an IP practitioner, I know this whole twitter exchange is a microcosm of a larger problem.  I know entrepreneurs everywhere don’t understand all of the intricacies of intellectual property law, but it doesn’t prevent them from making blanket statements that circulate as truth.

I know that when cash-strapped entrepreneurs see what looks like free, credible advice, they take it.  In fact, they seek out advice like this.  First, it’s free.  Second, it comes from a successful entrepreneur.   When they see a successful entrepreneur who seems to have some experience in this area say that they can ignore something, they tend to listen.  Why?  They are looking for an excuse NOT to spend their scarce money, time, or effort on it.

So, here is what you can take away from this exchange.

1.  Be careful who you take legal advice from.  If you get your legal advice in 140 character sound bites to save a few bucks, please don’t.  You know better than that, so please, before you act on someone’s free advice (a.k.a. his opinion), think twice.

2.  Be careful who you take legal advice from (Part 2.)  Even tweets from attorneys should be taken with caution.  The successful entrepreneur was not entirely wrong in his original tweet.  Not everyone needs expensive patents for their business.  However, some companies do.  So my tweet was not necessarily meant to cover every situation either.  It was merely to point out that the advice is limited, and for some people, it is absolutely the wrong advice.

3.  Get an informed opinion.  When you have a question about intellectual property (or business formation or partnerships or licensing or any of the 100s of other issues that you are facing), call an attorney and get a couple of hours of his/her time.  It’s worth the money to get the right advice for your unique situation.  Short money up front could save your business.

4.  There is a lot more to protecting your innovation than just getting patents.  Many start-ups and entrepreneurs believe that getting the patent is their only IP concern.  So if they don’t have to get patents, they falsely believe there is nothing else for them to worry about.

Oh, contraire.

The real patent issue may not be what you need to get, but what others have received.  Competitive intelligence, prior art searches, freedom-to-operate opinions, etc. may be even more important to your business than getting patents.

JUST BE CAREFUL WHOSE ADVICE YOU DECIDE TO FOLLOW.  IT COULD MAKE OR BREAK YOUR BUSINESS IN WAYS THAT YOU WON’T KNOW ABOUT UNTIL IT IS TOO LATE.

If you believe that you might be under the spell of some IP myths or falsehoods that you’ve learned over the years, I can help you identify fact from fiction.  Call me at 508-878-3590 or email me at kelli@ipinfocus.com to set-up an appointment to discuss your intellectual property issues and how I can help you solve them.

Big News from IP made simple

I am so happy to announce that I am offering a short guide with 10 helpful tips to get the most out of your intellectual property portfolio to all IP made simple Subscribers.

The guide is called 10 Things Every Business Should Do With Their Intellectual Property: A Quick IP Owner’s Guide. It is designed to give the typical IP owner a roadmap for how to best manage their intellectual property, and covers everything from knowing what the different types of IP are to how to plan and manage your intellectual assets.

Managing your intellectual property is not rocket science.  It is actually pretty simple.  It only requires that you to have a process or system in place (just like the systems you already have that manage your sales accounts, your finances, your customer service, etc.)  This Guide lays out the simple steps that every IP owner needs to take to create a great portfolio.

To get access to this free guide just go to www.ipmadesimple.com and type your email address into the box that says ‘email’ located in the big blue box on the home page. You will receive a welcome email with a link to the Guide as soon as your confirm your subscription to IP made simple.

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Be on the lookout for 2 new product offerings from me in the coming months.  Before the end of 2012, there will be two new ways to learn about intellectual property.

1.  I am in the process of creating a library of short tutorials on various intellectual property topics.  These short 10 – 15 minute presentations will allow you to learn everything you ever wanted to know about IP at your own pace.

2.  I will be also be offering you a chance to work with me one-on-one.  I will be offering a consulting option.  Under this program, on top of the 6 hours of IP training, I will conduct an IP audit of your business, review your contracts, and provide you with a plan to address your intellectual property issues.

More information on both of these products will be available shortly.

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On a mission to end IP ignorance forever.