How to Protect Government Intellectual Property
Four main types of intellectual property are recognized under U.S. intellectual property law--patents, copyrights, trademarks, and trade secrets. The U.S. government does not claim copyright on most of its literary works, and generally does not use trademarks. It does, however, produce inventions, some of which it chooses not to patent to avoid publication of the technology and expiration of patent protection.
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Things You'll Need
- Work for hire agreements
- Confidentiality agreements
- Employment contracts
- Patent applications
Instructions
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Conclude work for hire agreements with your employees. Work for hire agreements ensure that inventions created by employees belong to the government, and not the employee, as soon as they are created. If you are contracting with the government, these rights will belong to you instead of the government, but you will be required to grant the government a non-exclusive license to use it (this rule applies only to government entities).
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Execute confidentiality agreements with employees and contractors who have access to sensitive information. These should forbid the release of any proprietary information, rather than attempt to define "confidential" information. Such agreements should also provide for high liquidated damages in the event of breach of the agreement.
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Insert non-competition clauses in employment contracts. These clauses prevent employees with access to sensitive information form working for other employers in the same or a competitive technological field regardless of whether or not confidential information is divulged. U.S. law prevents such clauses from being enforced for an indefinite duration; it is difficult to persuade courts to enforce them longer than two or three years.
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Distribute information on a strict "need to know" basis. Do not even allow supervisors or senior executives to gain access to confidential information without a sufficient reason.
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Institute extensive record-keeping requirements requiring employees to track the development of ideas to prove that a government employee or agent was the first to invent a particular invention. This will help defend patent rights in the United States but not overseas (due to unique features of U.S. patent law).
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Apply for international patent protection for inventions that do not require trade secret protection. Preliminary examination by the International Bureau in Geneva, Switzerland followed by patent applications in individual member nations that are signatory to the Patent Cooperation Treaty will result in the broadest protection with the lowest financial investment.
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Actively prosecute those who commit even small violations of government intellectual property rights. When a legitimate national security concern can be demonstrated, the government is entitled to criminally prosecute those who divulge classified information under national security rather than intellectual property laws. Vigilant prosecution will help deter future violators. If you are contracting with the government, you will not be entitled to institute a criminal prosecution. However, you will be able to report criminal violations to the appropriate authorities.
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Tips & Warnings
Unlike other forms of intellectual property rights, trade secrets do not automatically expire. Examples of trade secrets include the formulas for Coca-Cola and Kentucky Fried Chicken. You should consider keeping information as a trade secret if you do not want it to ever be publicized.
If a trade secret is released without wrongdoing (an accidental release by a careless government employee or contractor, for example), no intellectual property protection attaches. Anyone can legally use it, unless it has been classified as a state secret for national security reasons by the U.S. government.
