9 core competencies for intellectual property

A business journalist asked me today: "What role can directors play to secure their organisation's intellectual property".

Nice question. But I'd like to answer a better question.

It's this: "What role can directors play to build and protect an intellectual property business and its future?"

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Sham independent contractor agreements

Can a person be legally an "employee" if he or she works casual or part-time for multiple businesses? What makes a person an employee and not an independent contractor?

In law the short answer is many factors. There are major financial and legal consequences. Employers have statutory obligations and employees have statutory entitlements, eg to superannuation payments.

The employees or contractors question arose in a 2011 court case involving the Australian Tax Office - On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366.

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Start-up funding checklist

Every start-up operates in its own unique circumstances. It has its own mix of products, people, markets and operating methods. It has its own vision of its past, present and future. Differentiation moves markets.

Every start-up seeking funding or raising post-establishment capital also requires a customised pitch. It pitches its circumstances and vision to raise funds. Information moves markets.

Sharing information on differentiation brings together start-up entrepreneurs and founders with investors. Collaboration supported by documentation moves markets.

Differentiation, information and documentation have grown trade since ancient times.

This article is a "how to" checklist for start-ups and investors seeking to get together.

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Distribution agreements in 3D

"What product exclusivity am I getting?" This is a common first question asked by prospective distributors considering a draft distribution agreement.

It's usually followed with a money question such as: "How much do I have to pay the supplier or manufacturer?"

Let's consider these questions and techniques for assessment of distribution proposals and draft distribution agreements. The aim is to design realistic, workable and practical arrangements between manufacturers, suppliers and distributors.

The starting point is to recognise that these exclusivity and money questions are often based on assumptions due to what we'll call a 2D view of distribution arrangements. Having drafted or reviewed over 350 distribution agreements, I see them in 3D.

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Regulation overkill comes full circle

"...[E]xcessive regulation, problematic implementation and unwarranted litigation - particularly when occurring simultaneously - make US capital markets less attractive and, therefore, less competitive with other financial centers around the world." US Committee on Capital Markets Regulation in its Interim Report, Nov. 2006

This quote sums it up - regulators in the US have bitten more than what they can chew.

It could not have been more coincidental. The US Committee on Capital Markets Regulation (US Committee) issues its interim report on "Capital Market Regulation" and several Australian governments issue even more reports on regulation:

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Protect your IP or lose it

Over recent months that's the learning from our client work as well as from external developments in intellectual property ("IP") law in Australia and abroad.

This article is an update on those external developments, answering these five questions:

  1. Trade secrets: Who did DuPont sue to protect it's Kevlar trade secrets and win $US919.9 million in a U.S. jury trial?
  2. Patents: Why has Apple Inc. (with iPad) versus Samsung (with Galaxy Tab 10.1) gone to the High Court, the highest court in Australia?
  3. IT Security: What can an employer do to retain control over Twitter, Facebook and social media web presence against former employees and web masters?
  4. Copyright and safe harbour principle: How is the forthcoming High Court decision in Roadshow v iiNet (ie Hollywood studios and some Australian ring-ins versus a big ISP) merely one of many battle fronts in the ongoing war over copyright and revenue streams?
  5. Trade marks: Do you think of where you might make a legal complaint or lodge a court action when you think of your online marketing or e-commerce ventures? You should. Facebook faces that issue in a case against, a business established in Norway. So have the Australian distributors of Affinage products.

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Software as a service contract Q&A

We are seeing a growing trend among our software developer clients. They are entrepreneurial business of all sizes. They’re run by smart people who know only too well that the value in what they offer is often not found in "out of the box" software or stand-alone products. They realise customers are busy people who value software that serves niche needs and is efficient, reliable, up-to-date and easily maintained.

These software developers and their customers are realising that the best way to provide this is to keep the software developer in the loop.

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Intellectual property law protects investors


The rationale for intellectual property law has changed over time. The topic became highly politicised a decade or two ago with rarely unconfused debate.

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Logo copyright blocks copying

A client asked today if he could reproduce logos of big companies without permission onto a brochure which he'd designed to promote his new marketing services business.

His intention was to make the brochure more attractive. He wanted to illustrate results he could deliver and make the brochure a more convincing marketing tool. The brochure promotes his services as a marketer for businesses wanting to build their brand.

It's a simple question. I'll try to keep the answer simple too, and short.

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How to take a business online

"There are certain things we need to get down way before we get to the point of drafting agreements or changing agreements." This is how I ended my video, Prerequisites for Technology & IP Contracts.

Imagine you run a company named Offline Pty Ltd. Its revenue is declining. It wants to spend its savings to launch a parallel business to be named Webco Pty Ltd.

This web business case study illustrates the required preparatory work for taking a business online.

Assume Online Pty Ltd is willing to spend say $20,000 to get a smart website with many trimmings.

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App strategy on four IT platforms

Apple has become a lead innovator in shaping the competitive landscape for mobile devices and apps. This is an outcome of its integrated business strategy, hardware, software and user interface initiatives.

These are evident in the launch of iTunes and iPods in 2001, iPhone in 2007 and the iPad in 2010. Each blind-sided old and new competitors and indeed their industries. Strategy is also evident in Apple’s decision, during R&D on touchscreens, to prioritise going to market first with iPhone over iPad due to seeing a clearer "go to market" strategy, to quote Steve Jobs.

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Risk management critical in realpolitik and law

I've found as a lawyer that I use historical analysis to understand and advise on proposed client deals and  decisions.

Like business law, history involves gathering evidence principally documentation, putting it into order usually chronological, and letting examination produce results.

In business law this approach helps study proposed business and legal relationships. In history relationships can be between ideas, actors, forces and responses. In business law they involve entities, rights, obligations, and prohibitions. Same, same but different.

I read a lot of law and a lot of history, they inform each other. One of my favourite sources is the Conversations with History series on YouTube from the University of California, Berkley. It has a great format, a scholarly interview for an hour or more usually with a historian who has written a recent book.

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IP increases food and beverage shelf-life


This Mumbrella video on YouTube ( illustrates that the practice of imitating popular supermarket products is rife at Coles. Coles no doubt checks the legality of each of its imitations.

Here's a few suggestions on how manufacturers and product originators can improve their legal protection. Each involves being a futurist in use of intellectual property law. Each involves the principle that it's better to design your IP than IP your design.

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How to protect brands with letters of demand

To prepare a letter of demand to protect a name you have two main tasks. Assume you claim ownership to the name and today discover a competitor using an identical or similar name. It might be for a similar business or for comparable products or services.

Task 1: First, gather facts by listing registrations you have for any relevant trade marks, company names, domain names or business names. You're sure to have some evidence here, maybe even if it is a product name or brand.

Task 2: Next, gather facts by listing your evidence of use of the name or brand in the course of trade. This task is difficult for many businesses.

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In-house standard contract - drafting challenges

Each of the in-house standard contracts we're currently drafting for clients involve thinking about their daily practical use.

One is for an established wealth management consultancy. Another for a supplier of hosted customised software.

Both require us to design and test like an engineer designing a car of the future.

The relatively easy bit is drafting legal wording for compliance with law and making legally effective agreements.

The hard bit is finessing and designing when and how each client will deal with its business tasks. That's the work that minimise the most risks. They are the client's practical tasks of writing business proposals, project plans, scope of work or specifications, and setting price expectations.

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