Friday, September 25, 2009

Stop Telling Your Secrets

I heard this story again, and it’s one that needs to be retold: a small R&D company posted its newsletter to the web. The newsletter included a picture of a chemist with a caption that explained exactly what the scientist was doing and disclosed the research and development effort that the company hoped would pull it out of a giant hole, dug by stiff competition and the recession.

Disclosure Starts a Clock That Has No Snooze Button
The newsletter may have started a clock with an alarm that will sound in one year. In the United States, disclosing a patentable idea starts a year-long countdown. If the idea isn’t patented within the year, the idea becomes general knowledge. The company’s outside patent attorney is about to have heart failure trying to figure out whether anyone saw the newsletter before it was yanked offline, and if so, how the company can pull the patent together in a year, given that R&D is still underway?

It’s so easy to disclose an idea: people blog about their work, especially work that excites them. Companies love newsletters that raise morale and cheer on employees’ hard work. Disclosing too early is a mistake, for sure, because the scramble to get very complex documents together quickly begins.

But who owns the mistake? The writer who wrote the story at all? The supervisor who suggested the photo op? Was the mistake to post the newsletter to the web? What if only employees received it printed on paper? Was the mistake that no one asked the corporate patent attorney to review the publication? Was the mistake that the writer hadn’t been aware—or trained—in some of the rudimentary problems associated with patent law—problems that occur when written artifacts are created.

Early Disclosure Can Cost A Lot
Entrepreneurial enterprises are working so hard to stay ahead of the recession. For some, just finding the money to keep the lab running is taking major effort. How, then, do you make sure your not going to accidentally devastate your efforts through a little tiny newsletter photo?

If you’re working in R&D—or on anything that might be patentable or considered a trade secret, you need to make sure the following things happen sooner rather than later:

  • Get an intellectual property attorney or patent agent to provide guidelines for your specific company. Every firm is different. Don’t assume what works for your friend in R&D at another firm will work for you.
  • Involve many people in training related to intellectual property—especially if disclosure of an idea could devastate your firm. When choosing who to train, cast the net wide and grab all of the key players and the communicators: the corporate officers, the public relations staff, the webmaster, technical writers, and even the scientists whose names will be on a potential patent. Get everyone involved in a discussion of secrets—trade secrets, patents, and corporate confidentiality. If you can, include the entire company.
  • Write down the guidelines for your company about disclosure and post them.
  • Ask employees to sign non-disclosure agreements that your legal counsel helps you write.
  • Send articles destined for the web, press releases, or newsletters through a vetting process that includes a check for accidental disclosure.
  • Make keeping corporate secrets secret an everyday practice that everyone understands.
  • Celebrate big when your R&D efforts pay off to remind everyone how important their roles were in developing the patented idea as well as communicating—and not communicating—about it.

We Talk Too Much
I once sat in a café with an attorney I was working with eating a chicken salad. I know it was a chicken salad (and I’m talking bare lettuce with grilled chicken on top) because I was trying to not gain weight before my wedding, despite the fact that all I do when I’m stressed is eat, and I was in Washington, D.C. three weeks before my wedding trying to solve an urgent client matter. While I was drinking my unsweetened ice tea, I thought I heard a few key words from the next table that sounded distinctly like the issues in the case we were working on. I thought I heard my client’s name.

I saw my lunch partner with his fork—of full-calorie pasta with thick, scrumptious-looking alfredo sauce—stopped midway toward his mouth. His head was cocked and he was listening, too.

The two men were discussing their case—the opposite side of our case—loudly enough for us to hear. We ate quietly, unobtrusively, and my lunch partner pulled out a pad and started taking notes.

Lucky for them, they didn’t disclose anything that would completely wreck their case, although they did point us toward some very interesting documents.

I Had a Close Call
At the beginning of my career, I was helping an attorney prepare for a deposition and took a bunch of documents and transcripts home with me. I was taking a commuter rail train, and a tall man sat down next to me. His bag had the name of the firm my client was suing embroidered on it, so I had a dilemma. Did I take a chance and use my hour commute to look at the documents as discreetly as possible? Or did I pull out my novel and try not to stress about losing the hour?

The man opened his bag to get out his novel, and I wondered if he would even notice I was looking at spreadsheets with his corporate logo on them. I could hide the logo, right?

I noticed a laminated business card on the handle of his bag. I dropped my pen so I could read the tag: the deponent’s name was printed clearly the card. Was I really sitting next to the man I’d see at the deposition?

Talk about a lucky moment. I could have screwed up big time. And I also learned in that moment to never risk potential disclosure.

From Now On
Promise yourself that you’ll keep the secrets you’re given. On elevators, at the sandwich shop, or even at the ballpark, be quiet. You could save your company millions.

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