So you have a great idea, a revolutionary idea, an idea that could be worth a fortune.  What is the best way to protect the idea so that you can profit from it?

That depends.  U.S. law provides several forms of intellectual property protection.  The right form(s) of protection will depend on the nature of the information to be protected and how it will be used.

• Patent rights protect inventions for a limited period of time.
• Trade secret rights protect confidential information from unlawful disclosure for so long as the secret can be kept.
• Copyrights protect original works of authorship fixed in a tangible medium of expression.
• Trademark, service mark and trade name rights protect words, phrases, pictures, symbols, shapes or other means identifying the source of origin of goods or services.
• Semiconductor works protect mask works fixed in a semiconductor chip product. 

It is important to remember that the various forms of intellectual property protection are not mutually exclusive.

In fact, all may apply to a single product launch.  For at least a period of time, information related to the nature of the product, how it will be priced and how it will be sold must be kept secret.  Even after launch, business information surrounding the product and business plans related to the future are to be held in confidence.  Thus, securing and protecting trade secret rights is important.  The product may involve one or more inventions related to how it works and even how it looks.  Thus, utility and design patents may be available to keep others from using such inventions.  If the product includes semiconductor chips, mask work protection may be available.  Every product has a name and many can be readily identified by their ornamental features or the features employed in packaging.  Trademark and trade dress rights therefore come into play.  Various pieces of literature are typically associated with the product launch including advertising pieces, instruction manuals and software code, all of which give rise to copyright protection.

With each new product introduction, two basic questions need to be asked.  Will I be infringing any intellectual property rights of others? And how can I best protect the substantial investment I am making to bring the product to market?  The earlier these questions are asked, the better.  We, of course, would appreciate the opportunity to help you find the right answers.

At Nikolai & Mersereau we can help you sort out these issues and select the most appropriate types of protection for your ideas. 

Jim Nikolai       (612) 392-7302           Jim.Nikolai@nm-iplaw.com

Recently Kentucky Fried Chicken® removed Col. Sanders’ handwritten recipe of 11 herbs and spices from their corporate offices to allow them to revamp security around the location where the recipe is normally kept.  KFC® hired off-duty police officers and private security guards to secure the document to an undisclosed location in an armored car.  The recipe was loaded into a briefcase and handcuffed to a security expert for the ride.  The security firm is also handling the security improvements for the recipe at KFC® headquarters. 

According to a Fox News Article, the recipe has been tucked away in a filing cabinet equipped with two combination locks in the company headquarters for over twenty years.  To reach the cabinet the keepers of the recipe would first open up a vault and unlock three locks on a door standing in front of the cabinet.  At any one time only two executives have access to the recipe. 

While at first this seems like security out of a James Bond movie or a Get Smart episode it does go to show the lengths some companies will go to keep their trade secret secret.  You may ask yourself just how valuable is this trade secret that they would be going through all of this effort and cost to maintain its secrecy.  According to the Fox News article KFC® posted U.S. only sales of $5.3 billion in 2007.   

The First Restatement of torts §757 defines a trade secret as “any formula, pattern, device, or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who did not know or use it”.

All businesses develop valuable concepts, information and “know-how” such as manufacturing processes, customer lists, software or a business process giving them a competitive advantage in producing or selling their goods or services effectively. 

One of the factors for determining whether information or an idea is a trade secret is what measures the business has taken to ensure the idea or information remains secret.  The trade secret holder must take “reasonable measures” to ensure the information remains a trade secret.  Given these legal requirements and the value of KFC®’s secret formula, the security precautions taken by KFC® seem extravagant, but necessary. 

Jim Paige          (612) 392-7310           Jim.Paige@nm-iplaw.com