COPYRIGHTS.
Copyright gives legal protection against others who copy
anything original that you write or record. You automatically have copyright rights in any book, article, advertisement, software, movie, or music recording that you create. Copyright protects the particular expression that you write or record; it does not, however, protect the underlying idea that you have expressed. Your copyright rights generally give you the exclusive right to reproduce, distribute, display, or create derivative works from your copyrighted material.
There is no requirement that a copyright owner put a copyright notice on a protected work, but printing the copyright symbol—©—along with the copyright owner and the date of publication on a copyrighted work alerts others to the fact that the material is copyrighted and perhaps reduces the chance of unauthorized copying in the first place. Attaching this notice can entitle the owner to enhanced damages in a copyright lawsuit as well.
Apart from attaching the copyright notice, it can be worthwhile to register copyrighted works with the Copyright Office of the Library of Congress.
It is necessary to register a copyrighted work in order to recover statutory damages and attorney’s fees from an infringer.
PATENTS.
A patent is basically a government-issued monopoly over an in-
vention. Many people think that patents apply only to machines, but patents are available for business processes and methods. You can protect a new hybrid of a plant with a patent, and you can obtain a design patent to protect the aesthetic look of a product. Patent protection is also available for improvements to preexisting inventions.
If you invent a new process or business method, you can obtain a patent to protect your invention, if you can show that your invention is useful, new, and nonobvious. For example, Amazon.com, Inc. obtained a patent on its
“one click” Internet ordering process.
506
The Back Office: Efficient Firm Operations
Obtaining a patent simply gives you the right to prevent others from using your invention by suing others who make, use, sell, or import a product produced by the process. Other people can be liable to you for patent infringement even if they did not know about your patent. There are a variety of reasons to consider seeking patent protection for your invention. Obtaining a patent can discourage others from copying your know-how, increase the recognition of your products or services, provide a potential source of licensing revenue, serve as a marketing tool, and attract investors and venture capital.
To obtain a patent, you have to apply for one within one year of the date you first used the invention publicly or commercially, although the safest course is to apply for a patent before you begin commercial use of your invention. A patent issued by the federal government is valid only in the United States. If you plan to do business in other countries, you will have to seek patent protection from those other countries. Finally, a patent is valid only for a certain number of years. Most U.S. patents are good for 20 years from the date you first seek patent protection.
The process of obtaining a patent can be complex, and it is usually worth the expense to hire a patent attorney to assist you in seeking patent protection for your invention.
TRADE SECRETS.
Finally, the professional services business should make
special efforts to protect its trade secrets. Trade secrets can be anything that a business knows or does that gives it an advantage over competitors. Trade secrets can be customer lists, pricing information, marketing plans, and other processes. To be a trade secret, information need not be novel enough to be patentable, but it must be, and remain, secret. It can thus be useful to have a lawyer perform a “trade secret” audit for your business to ensure that you are doing all that you can to ensure that your protectable secret information remains secret. Such an audit can review your business’s confidentiality notices, confidentiality agreements, and procedures to ensure that access to sensitive information is appropriately restricted.
Contract Review
Consulting a lawyer to review contracts that you enter into can also be a wise use of your resources. Particularly with major agreements, it is essential that the firm understands all of the terms of the contract it is are going to execute.
Your lawyer should be able to explain the provisions of a proposed contract to your satisfaction; you should not rely on an interpretation of a proposed agreement made by the other party to the transaction. It is also a good idea to discuss with your lawyer the nature of the deal involved. Through a discussion of the matter, you and your attorney may identify areas of uncertainty that need to be clarified.
Legal Counsel
507
There is an advantage to having and using your own form contracts.
Once you learn and become at ease with the terms of your own form, you will not have to analyze new proposed contracts from others with whom you do business to the extent your form is used. In addition, by using your own form contract as a starting point, you will often have a greater degree of control over the contents of the final agreement.
Selecting a Lawyer
The process of selecting a lawyer can be difficult. When a firm decides to hire a lawyer, either because it suddenly has a need or, preferably, because it is planning ahead, it is faced with a variety of choices. For some reason, it can be difficult to find a good lawyer who fits your needs. While there are many different contexts in which a professional services firm can benefit from the services of a lawyer (including those most typical circumstances discussed earlier), it can sometimes be difficult to expend the time and effort the firm would like to spend to make a good choice. Also, legal matters can be complex, and it can be a chore to dig in and understand what your firm needs.
Nevertheless, a good attorney can significantly benefit your firm. Lawyers can be valuable advisors for overall company business in addition to driving resolution of strictly legal matters.
Ultimately, the choice of a legal advisor can rest on any number of factors, depending on the needs and preferences of the firm. In this section, we survey some of the major points you may want to consider in choosing legal services.
Establishing Selection Criteria
The first step in selecting a lawyer is to determine what characteristics in a lawyer are important to the firm. In this part of the chapter, we discuss some of the issues you may want to consider in determining what factors you will use in the selection process.
LAWYER VERSUS LAW FIRM AND THE PRIMARY LEGAL CONTACT. One
issue that should be considered is whether to choose a large law firm or a smaller firm or sole practitioner. Often it is a good idea to focus, at least initially, on finding a good lawyer rather than a good law firm because in large law firms, as in other types of service businesses, the quality of the individual service provider varies, regardless of the quality of the overall firm. Additionally, it is useful to establish a relationship with a primary legal contact to help you work through issues. Even if the firm is outstanding, if your relationship with your primary contact is poor, you will most likely be dissatisfied. Accordingly, it is important to find a lawyer who is a good fit from a variety of standpoints, including among other things, skill-set, experience, knowledge, and personality.
508
The Back Office: Efficient Firm Operations
GENERALIST VERSUS SPECIALIST. Another issue to consider is whether
to select a generalist or a specialist. Often an attorney with extensive specialized knowledge in a particular area can seem to be an attractive choice. In the course of business, however, a professional services provider is likely to encounter a wide range of legal issues. Thus, if you attempt to select a specialist for each issue that arises, you may end up with a large number of lawyers working on narrow, discrete items. In many cases, it may instead be preferable to select as your primary legal contact a strong generalist with good business sense. If you choose the path of the generalist, it is important to determine that he or she understands his or her weaknesses and “blind-spots” and understands when and how to call in an expert (or, put another way, a specialist). Further, the generalist should have an advantage if he or she has a broad range of quality legal contacts with specialized expertise.
ASSESSING FIT.
You will also be well served to consider whether a lawyer
is a good fit for your particular firm. First, in assessing your candidates, it is imperative that you are comfortable that the lawyer has sufficient legal knowledge in the relevant areas. If a lawyer is not knowledgeable enough to complete (or appropriately delegate) the given set of tasks at hand at a high-quality level, that lawyer should not be doing the work.