Importance of IP Policy for Indian IT
industry
Intellectual property (IP) is a term referring to
creation of human mind in the form of a number of distinct types of expressions
for which a set of rights are recognized under the corresponding regimes of
law. We know very well that Indian software/IT industry is primarily based on
services, though transition from service to product is increasing nowadays.
However, in either case, innovation plays vital role in sustainable growth of
the organization.
In case of Indian IT industry, whether it is into
services or products or both, IP typically means patent, copyright, design,
confidential information, trade secret, brand name and domain name etc.,
wherein handling confidential information or trade-secret needs lots of care
for the reason that it is not registered and moreover, we don’t have adequate
laws to protect them. Though there are several IP related issues, however,
drawing line between proprietary IP and client’s IP may become a challenge at
times, especially when the company is bound by stringent agreements.
IP policy in simple words, is a document that defines
IP as per company’s business; provides guidelines for creation, protection,
exploitation, disclosure, ownership of IP; sensitizes employees about aspects
of IP and at the same time guides them regarding the precautions that need to
be taken to safeguard company’s IP as well as prevent or minimize IP
infringement risk. IP policy also provides guidelines and procedures for
disclosure & non-disclosure of intellectual property whether protectable or
not; and to develop and enhance environment of innovation and generate creative
& novel IP compatible with business goals of the company.
Coverage of policy
Typically an IP policy is applicable to the employees
of the company; however, if company works with outside vendors, Freelancers or
consultants etc, coverage of policy may be extended to them as well as they
have be involved in the process of creating IP for which ownership and
confidentiality issues need to be addressed clearly in the policy.
Meaning of IP
Defining meaning of IP, depending upon core area of
business is essential. IP may include Patent, Copyright, Trademark & Domain
name, Design, Confidential information or trade-secret that might be
proprietary in nature or created by employees during course of employment or by
the consultants as a part of contractual relationship with the company. The
kind of IP that shall be included in the definition purely depends upon
business area and strategies of the company.
Ownership
Since IP is created by the employees during the course
of employment, company would prefer having ownership of such IP with itself.
However, in case of patent, the application for a patent shall be filed by true
& first inventor, its assignee or legal representative. Therefore, it is
extremely important to list out the inventors whose names are going to appear
on the patent application, right in the beginning of the project to avoid
arising of disputes later on. However,
inventor may further assign rights to the company; so that ownership of the
patent is with the company.
Similarly in case of copyright, applicant is the company and the
employee who creates the work is called as author). When company decides to
file application for copyright registration, the author (s) is required to give
NOC (No Objection Certificate) to the Copyright Registry stating that he/she
has created the work during course of employment and he/she has no objections
if the work gets registered in the name of the company. However, proprietary
IP, confidential information is exclusive property of the company unless
company specifically authorises employee to disclose, use or own it.
Security and confidentiality
Even though most of the IT/software firms have
implemented multiple security measures to prevent the loss, misuse and
alteration of any confidential information under its control, employees must
strictly follow the security measures, which are extremely crucial to secure
technical and business information of the company. First of all identification of
trade-secrets is very important and it can be best protected by segregating it
into low, moderate and high confidentiality type and further by limiting access
to it. Employment and non -disclosure or confidentiality agreement may further
be used as tools to safeguard confidential information of the company.
Labelling documents as “Confidential” is an appropriate way of communicating
information as Confidential and serves as an express notice to indicate nature
of the document.
Sensitization of the employees on confidential
information and consequences of misappropriating is necessary from time to
time. Whom to disclose, when to disclose, how to disclose such
information shall be made clear in the policy. Liability of the employee during
course of employment or even after termination or resignation must be dealt
with c
Record of work
Systematic & periodicrecord of work, research,
ideas is extremely critical to serve as an evidence to establish ownership
(copyright) or inventorship (patent or design) and date on which intellectual
property was created or developed by employee. It could also be helpful to find
out infringement of intellectual property, if performed by an employee. Record
book shall not be permitted to be taken outside the premises of the company and
crucial data or descriptions should be signed and dated by the creator,
supervisor, or coordinator of the project.
Liability of employee
Before expecting employees follow the IP policy, they
shall be explained essential clauses of NDA and employment agreement that they
sign at the time of joining. This will sensitise them about their duties as
well as liabilities towards the company. At the time of termination or
resignation, exit interview must be conducted and copy of agreements signed at
the time of joining must be handed over to the employee to remind him his
responsibilities as well as liabilities. Getting confidential or any sensitive
information from prior employer and incorporating such information in the work
may land up in a very undesirable condition and any such practice must be
strictly discouraged by the company.
Idea Disclosure
As far as patents are concerned, the process starts with conception and
disclosure of idea. Here again, the activities such as whom to reveal the idea,
how to take idea forward, effort needed to convert idea to executable
invention, defining inventors, royalty percentage or reward upon
commercialization of the idea, are few of the critical issues that must be
addressed in the IP Policy. However, maintaining confidentiality of idea,
documentation, assessment of novelty and business relevance of idea and discussion
with patent attorney, filing for patent in India or foreign country requires documentation
of the process so that there is coordination between date of filing a patent
application and disclosure in the form of product launch. Moreover, in the
process of patenting, there are several critical timelines and fee that need to
marked and updated from time to time.
