Record Keeping for Coders, Inventors, and Startup Geeks April 01, 2017 16:31
A startup's value to investors rests firmly in its intellectual property rights. Intellectual property ("IP") is the single biggest asset of 60% of U.S. startups today and that number is expected to grow exponentially over the next five years. If there is ever a dispute about who owns the IP, an inventor's notebook could very well be the saving grace.
Determining the Author and Inventor
To determine inventorship, you must first determine what the invention is and then determine who contributed to making it. Often, inventorship is defined by negatives. For example, an inventor is not someone who merely contributed non-inventive information; or, an inventor is also not someone who simply ran routine tests.
How to Record Your Invention
Keep detailed notes of meetings, telephone calls, alpha/beta testing dates and outcomes, work and other writings in a bound notebook. Have the pages of the notebook witnessed, meaning signed and dated by someone who understands the invention but is not a co-inventor. Maintain records of slides and or disclosures made in presentations and copies of your reports.
The Purpose of a Coder's Notebook
A software patent for example, grants its owner the right to sue those who manufacture and market products or services that infringe on the claims declared in the patent. Typically, governments award patents on either a first to file or first to invent basis. Therefore, it is important to keep and maintain records that help establish who is first to invent a particular invention.
The inventor's notebook is a systematic device for recording all information related to an invention in such a way that it can be used to develop a case during a patent contestation or patent-related lawsuit. The notebook is also a valuable tool for the inventor since it provides a chronological record of an invention and its reduction to practice. Each entry must be signed and dated by a witness. The witness should not be someone with a conflict of interest (such as a research partner). If an inventor ever has to go to court to prove he or she was the first to invent, then the witness would be called to the stand to testify that the signature is theirs and they signed that page on that date.
A "virtual inventor's notebook", in which one scans note pages and emails them to oneself, would not provide the same legal protection as a bound inventor's notebook since it is easier to commit fraud with a virtual notebook.
The need for an inventor's notebook will diminish in the future as the United States is progressively implementing a first-to-file system. It has been said that first-to-file eliminates a troubling source of litigation, particularly for individual inventors who may lack the processes and legal resources to defend against evidentiary challenges by large corporate research organizations.
Physical Requirements for Your Notebook
Integrity is the primary reason for a physical book. To best serve its evidentiary function an inventor's notebook should be in a form where it will be readily apparent that the contents have not been tampered with, such as having pages that may have been removed, replaced, or altered. Accordingly, an inventor’s notebook should:
- Be permanently bound with a fixed number of pages (no looseleaf binders);
- Have all of the pages sequentially numbered;
- Have space on each page for at least one witness to sign and date.
- Write in permanent ink & legibly;
- No empty spaces or skipped pages;
- Permanently attach any supplemental materials;
- NEVER make alterations of any kind. Never tear out pages, erase anything, or alter notebook entries. If you make a mistake while making an entry just draw a line through it so that the mistake is still readable, then date and initial next to the line.
- Don’t record any communications with your Attorney. These are always confidential and protected from disclosure under the attorney-client privilege.