Et tu, Brute?

We're all familiar with the story of Julius Caesar.

Many view Julius Caesar as Rome's greatest emperor.

Yet toward the end of his reign, his influence was waning and conspirators plotted against him.

This all came to a head when an assassination attempt was made in 44BC.

It's alleged that Julius Caeser was initially able to fend off his attackers...

That is, until he saw amongst them, Brutus his close friend and protegée.

It was then he succumbed to the attack and was killed.

His final words: "Et tu, Brute?"

"And you, Brutus?"

This was the ultimate story of betrayal and one that still echoes through the ages.

It could be you!

So why the history lesson, I hear you ask?

Well, the story has become a bit of a modern parable.

Simply put, it is those that are closest to us that can hurt us most.

We see this all the time when it comes to IP and businesses.

The most common scenarios involve ex-business partners, suppliers and ex-employees.

After leaving the business, or having had access to important IP, they then engage in infringing activity.

In the case of the ex-business partner, this might even include setting up a competing enterprise!

It is unexpected and incredibly damaging.

And we see it time and time again.
 
 

Danger levels

But why does it happen?

Frankly, lot of businesses put themselves in a vulnerable position by not having everything protected in the first place.

Key bits of IP that can come into question include (but are not limited to):

• Client databases
• Supplier lists
• Business plans
• Unique methods and processes
• Even "hard IP", like trade marks and patents

Simply put, imagine in a worst-case scenario that someone had access to your secret sauce.

Now imagine it's someone who is familiar with it and is best placed to deploy it.

Even worse, they may be disgruntled and willing to do whatever it takes to get one over on you.

Not good.

But it doesn't have to be that way.

 

Protect your neck

The security of these assets is something you want to have in mind before a problem arises.

This is ultimately a business owner's responsibility.

When it comes to establishing clarity over IP, this means having the right safeguards in place from day 1.

Most companies have critical IP.

Innovation-driven businesses will really want to pay attention and do what it takes to get it right.

Generally speaking, the following steps are the beginning of best practices in this area.

 

Step 1: Assign IP correctly

The first step is to ensure that the key IP is assigned correctly.

In our experience, many disputes arise when assets are owned by individuals and not businesses.

A comprehensive and correct approach to ownership of key IP avoids this.

Usually, this involves assigning it to the business or a dedicated holding company.  
 
 

Step 2: IP in Employment Contracts

Your employees are the workhorses of your business and come into contact with key IP day-to-day.
 
Because of this, it is important to have a broad strategy within the business that protects access to IP and to integrate IP protection into your employment contracts.
 
This protection could be in the form of a blanket agreement employees sign, or as tailored clauses depending on the seniority and role of each employee.
 
Whichever form of protection you utilise, contractual terms around IP can make all the difference.  
 
 

Step 3: Watertight Agreements with Suppliers and Manufacturers

Another common problem we see is issues that arise with suppliers and manufacturers.

3rd parties like these get quite close to businesses and then... (following the conclusion of an arrangement) are well placed to capitalise.

For example, following the expiry of an exclusive agreement, we sometimes see manufacturers producing copies of a widget a business has given them the original designs for!

With nothing put in place to stop this not much can be done once the cat is out of the bag.

This can get very bad for businesses, very fast. Believe me, I've seen it!

Being savvy about locking down the IP in agreements in the first instance avoids this risk altogether.
 
 

Step 4: Confidentiality and NDAs

Confidentiality and non-disclosure agreements can also be really useful.

Deployed on an ad-hoc basis these agreements can give you added protection over key IP when it is shared.

What is perhaps most useful about these kinds of agreements is how explicit they make the protection of IP to the concerned parties.
 
 

Step 5: Educate, Educate, Educate

Education is perhaps the most overlooked and undervalued way to canonise IP protection within your business.

By training members of the team and other stakeholders regularly around IP - no one is under any illusions as to what is held under lock and key.

It also keeps IP top of mind and means that any infringement that occurs can be proven to be intentional and not inadvertent.

Peace of mind

The purpose of this newsletter was not to make you feel paranoid.

We all have enough to worry about at the moment!

Yet, as you know, one of my favourite phrases is "an ounce of prevention is worth a pound of cure". 

Here, more than anywhere else, this is important.

A clear understanding between stakeholders about the ownership, value and significance of IP helps avoid these kinds of difficult situations when working relationships go sour.

If you need help with any of the above, do let me know - I would be more than happy to chat.

Just get in touch the usual way.

Hope you have a fantastic week!

Liz​