- Write A Policy
Perhaps the most important first step to handling issues with unsolicited ideas is to have an Idea Submission Policy. Without a clear written policy, it is more likely that offhand statements and actions could obligate the company. For example, something as simple as “Thanks, we’ll take a look at this and get back to you” could form the basis of a reliance on part of the submitter and obligate the company to perform a review.
The Idea Submission Policy should reflect and further the client’s business goals. For example, companies with vibrant internal research and development may want a stronger policy to limit the risk that outsiders will claim that a company’s product or service came from them. However, companies with a deeply engaged customer-base may want a softer policy that balances outreach and protection.
Generally Idea Submission Policies will address three main issues:
Whether the company will accept unsolicited idea submissions at all. This is most defining aspect of the policy and will set the direct and tone for the rest of the policy.
What the company may do with the idea. Typically, this can be anything the company wants to do with the idea. These statement should be permissive, making clear these are not obligations the company is undertaking. Some policies may want to restate the company’s respect for the enforceable patents, copyrights, and trademarks of others.
Clear waivers of obligations for ideas the company does not want. This should be a relatively comprehensive list. For example, one may want to waive confidentiality obligations for the idea, recognition for the idea, any admission that the idea is novel, any promise of compensation, …
- Publish The Policy
Generally, the policy should be available on the company’s website. A “legal” page (typically they have terms and conditions for the site itself) is a natural place for the policy. A “contact information” page is another good location for the policy. Also consider including the policy in other external communications, for example, it can be included in contracts, support communications, user’s or developer’s guides, and the like. It’s best that submitters see the policy before submitting ideas to the company, so any external touch point should be considered.
- Train Employees
Having the policy externally is only half the battle. Employees, especially employees that regularly interact external to the company, should be aware that an unsolicited idea policy exists. These employees are the first line of defense and their interaction will be the beginning of the fact pattern for any issues down the road.
Consider training via the employee on-boarding process and in the employee handbook. If the company has training on confidentiality and/or computer security, information about the policy could be a short module. It’s often best if employees are trained to not entertain the idea submission, not take materials or demonstrations, and promptly refer the submitter to the company’s legal department.
Another area where this training may be appropriate is in the context of interview training. Hiring managers should be wary of soliciting ideas and should be training on how to properly handle ideas offered up by eager interviewees.
- Be Aware That Unsolicited Ideas Can Be More Than Just Technology
Being on the lookout for unsolicited idea issues means being on the lookout for more than just technological submissions and new products. Protectable intellectual property extends beyond just inventions that can be patented. Unsolicited marketing concepts, advertising ideas and copy, and business plans may give rise to the same host of issues that an unsolicited new product or feature idea can.
- Encourage Internal Documentation And Idea Submission
One of the best responses to an attorney claiming that your company stole his client’s idea may just be, “nah, we invented and patented that years ago.” A robust internal idea documentation and submission policy, is first and foremost, a good building block in a strong IP strategy, but it also has the added benefit of providing excellent documentation prior development when a claim of a “stolen idea” comes over the transom.
Good documentation begins with all employees, but especially engineering and development employees, keeping accurate and comprehensive records of their work. The dated, serial-numbered-paged engineering notebook is a great tool in this regard. For paperless cultures, properly configured document management systems can be used to document when materials, such as engineering documents, memos, and slide decks, were first present in the system.
The provisional patent application is often underused for this purpose. The U.S. provisional patent application is a low-cost way of tying a specific date to document. If the internal idea goes no further in the patent office than the provisional application filing, at the very least, the date of submission is secured and the submission itself is maintained in confidence at the patent office. The provisional application has the added benefit of affording the company a one-year period within which to decide about proceeding with a regular patent application. During that time the company may further vet the idea and determine if it is appropriate for patent protection.
- Be Attune To Social Media Exposure When Implementing
With the advent of social media, customers expect more interaction with their brand than ever before. Moreover, miscues can garner a lot of attention in a relatively short time. For example, in 2015, a self-described lifelong AT&T customer, sent a note to AT&T’s CEO, Randall Stephenson, suggesting they provide unlimited data for DSL customers and bring back certain messaging plans. The customer received a letter from AT&T Legal, stating “AT&T has a policy of not entertaining unsolicited offers to adopt, analyze, develop, license or purchase third-party intellectual property … from members of the general public. Therefore, we respectfully decline to consider your suggestion.” The story struck a nerve and was widely disseminated in other news outlets.
Competitor T-Mobile even used the incident as a marketing tool (and social media poniard). T-Mobile CEO John Legere provided his own email address (John.Legere@T-Mobile.com) and said that “it absolutely amazes me that Randall would tell a lifelong customer to basically go away and talk to my lawyers.” T-Mobile created an email address, IdeasforRandall@t-mobile.com, which collects ideas for services and a Twitter hashtag #IdeasforRandall. Legere also stated, “I interact with customers on a daily basis so I can hear their ideas firsthand. It’s called living in the 21st century.”