Intellectual Property and The Need for Its Protection

The term intellectual property implies any idea, innovation or setup that has been created by an individual with the very use of their intellect; hence the name intellectual property. When this individual enters the world market with their new idea, it is only fair to let them have a monopoly experience in the market – at least for some time before their idea starts getting copied, thereby putting the sole creator/innovator in a perfectly competitive market situation.

Therefore, to protect the rights of intellectual property, certificate documents like trademarks, patents and copyrights were introduced. Moreover, beginning in the late 19th century, the intellectual property law began establishing its ground and by the 20th century it was a worldwide phenomenon. An important reason in the formulation of this law was to protect intellectual property and to help promote creativity and innovation. If there is no guaranteed protection of intellectual property, the work towards imagination and invention will soon be curtailed. One such method used to safeguard your intellectual property is signing an NDA.

What is an NDA?
For any startup or an individual, the process of bringing out their idea into the world is the first step towards success. And it is only understandable that any company cannot function completely by themselves and there is always a list of other firms that help produce the final product. In order to contact suppliers for raw materials, the idea can no longer be placed in a locker room and for the protection of this intellectual property, the owner signs a Non-disclosure agreement with companies whose products become their input needs.

To sum it up, a non-disclosure agreement is a contract signed between the concerned parties wherein one party gives some information about their intellectual property to the other party who will be dealing with them in business matters; and the other party conforms to the agreement by agreeing not to disclose this information to anybody. This way, the company’s new idea is safe from potential competitors in the market.

Will Your NDA Actually Protect Your IP?
While it is widely suggested that an NDA is by far the most reliable means to protect your intellectual property, the question still arises as to how far an NDA does grants you protection.
While using an NDA, you should be wary of a few things:

First of all, it should be understood that a Non-disclosure agreement is by law entitled to protect intellectual property – and an intellectual property is any idea presented in a tangible form. This means that if you have an idea in your head and you decide to entrust somebody with this life changing idea of yours by signing an NDA, you are still not protected as by law, your idea is no tangible good/intellectual property. Thus your NDA will be rendered useless in a court of law. Therefore the first step towards signing an NDA should be to make sure that your idea is an Intellectual property in terms of the legal definition. This can be accomplished by signing up for patents, trademarks or copyrights.

Another factor that must be considered before signing an NDA is the clauses it contains. A strong NDA that ensures complete protection of your IP will have concrete and meaningful clauses. For example a clause like this information shall not be leaked is not very reflective of its purpose and can be manipulated easily. A better representation of this clause would be specifying the information and the fact that it could not be leaked anywhere by any means would make the message more concrete.

An important factor to take into account is the case of unexpected circumstances. An event whereby an employee leaves the firm should be added to the clause. For example, if the clause included the security of information by all employees – in this case, the person is no longer an employee and has the right to do with it as he wishes. Therefore it must have been mentioned that any employee leaving the firm is still under this contract until the owner of the IP allows him to exit.

Finally, after signing the NDA, a company cannot stop there; it should continuously take measures to protect their valuable data from theft of other cases that are totally out of control. Methods like encryption and storing the data in a computerized database and not in physical form are suggested. Likewise, measures should be taken to limit accessibility to this data within the company itself and those of the dealing firms. Moreover, monitoring sensitive information like when and where the data has been accessed are also recommended precautionary measures.

In the case of your NDA being breached, you should immediately set up an investigation team to look into the matter closely and gather all related information. Next, you should hire your attorney to investigate further before you finally ask him to take legal notice. Some common legal claims that you can go for are Misappropriation of trade secrets, Breach of fiduciary duty, Copyright infringement, Conversion, Patent infringement, Trespass, RICO.

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