Warning! Co-Creation Hazard Ahead

Brainstorming and collaborating frequently produces superior work. For that reason, it is not surprising that many creative works, in the art and literature world, as well as in the business world, are the result of co-creation. Unfortunately, it is common for disputes to arise over co-created materials. That is not to say you shouldn't collaborate. It is, however, essential that the collaborators agree upon the terms of the arrangement.

Whether you have a business partner, a co-inventor on a new product, or a co-author on a book, blog, or other writing, you should take some simple steps to avoid future disagreements over ownership. As human beings, we typically perceive our contribution to a project as being the most valuable. The financier always believes the key to the company's success is the financial capital, the visionary always believes it is the ideas and the person rolling up their sleeves to do the work believes that success is the result of hard work. Of course, a more objective observer knows that all of those were the ingredients of success.

The laws governing intellectual property do dictate the rights owned by co-authors and co-inventors, but those laws do not necessarily match the intentions of the parties. If two authors work together to author a book, they become joint owners in the copyright to the book. Unless the writing was separated in some easily discernable way, both authors own 50 percent of the work and each have all of the rights that a single author would have. For example, if both authors contributed to every chapter and worked together to decide on wording, there is no way to differentiate between their work and therefore no method to divide the copyright. On the other hand, if each author wrote certain chapters of the book and those chapters could be separated without destroying the work, then there might be a way to divide the copyright. Typically, that is not the case. The applicable federal law states that "a 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

Similarly, joint inventors on a patent each have all of the rights of an inventor. There is usually no easy or accurate way to separate out the contribution of each inventor to the invention.

Co-authorship and co-inventorship can be problematic because both creators have the right to commercialize and monetize the product and can easily and frequently do, interfere with one another's efforts if there is a lack of cooperation.

When co-authorship is contemplated, my recommendation to my clients is that they enter into a written assignment of the copyright to avoid joint ownership of the copyright. One of the authors can assign their rights to the other author in exchange for compensation, recognition, and other negotiated terms. If the co-authors cannot agree on one owner, they can both assign the copyright to a company in which they both have an ownership interest. The company, such as a limited liability company, should be governed by a written agreement between the owners. That agreement should include the rights and obligations of the respective members, how to deal with contingencies such as the death of one of the owners, buyout provisions by one owner of the other's interest as well as other operational matters.

When a creation is only owned by only one person or one entity, there is a clearer direction for commercialization of the work and there are far fewer disputes over the respective rights and obligations of the parties. The next time you are collaborating on a project that involves intellectual property, make sure you discuss ownership of the resulting product and consider consulting an intellectual property attorney to assist you in memorializing your agreements and assigning the ownership to a single person or entity. The cost of this preventative step will be a fraction of the cost of resolving a dispute later.

This article is not intended to provide legal advice. This article only covers United States Law. Always consult an attorney for legal advice for your particular situation.

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Competitive Intelligence - Getting Ahead of the Development Curve

Today companies are being forced to cope with rising litigation risk because the business environment is simply more litigious. This increased litigiousness has produced a more rigorous due diligence requirement that involves a greater focus on the way intelligence is gathered and the processes associated with it. Part of this rigorous protocol is to monitor the IP landscape generally and competitive targets specifically (companies, products and technologies), before a decision is made to pursue one or more candidates.

You can monitor technology in a variety of ways as it is being developed. At the inception of a technology, research platforms can provide only limited assistance because patents aren't typically filed until about halfway through the product lifecycle.

The lifecycle of the product usually begins with basic research and progresses through a developmental stage until it is mature enough to patent. After the technology is mature and protected, marketing plans begin to emerge as it is applied to products and finally introduced to the market.

Because results of patent analysis rely in part on patent data, there isn't a way to use it to thoroughly evaluate the technology between inception and patent prosecution. Innography can assist with evaluating the company, along with its current product and patent portfolio during that phase. But much of the competitive intelligence (CI) research must be performed in more conventional ways.

In the beginning, it can be monitored using resources such as research papers and grey literature. This method is a very important complement to research that can be performed using a research platform. Using the platform, you can see what companies are investing in which technologies, which can be very good technology investment indicators. It can point you to materials that indicate which type of investments in future technologies are being made today.

As the technology becomes well defined and is deemed to be viable, you can rely on R&D Alliances and joint ventures such as open innovation networks to understand the developmental progress. At this point, the focus of your CI gathering should shift from understanding the technology, to a complete understanding of the company who is investing in its development.

Finally, as the technology comes online and patents are filed and granted, you can begin to understand with greater clarity which of your CI targets represents the best investment and least risk. This is where your IP business intelligence platform i.e. patent software becomes critical.

You need to be able to overlay the IP data with business and legal data to give it a business context. It is important to know, for example, whether the new technology really is new and whether its patent is similar to other patents held by litigious companies. In such a case, they might already be aware of the patent and are simply waiting for an acquisition or licensing deal so that they can sue someone with much deeper pockets than the inventor.

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