Mitigating Risk Strategies For SMEs
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  • 1. Mitigating Legal Hotspots On the Road to Growth and Expansion FEI SME Conference November 10, 2011
  • 2. Highlights
    • Legal beyond corporate and litigation
    • Employment and Consultant Agreements
    • Business Contracts
    • “ Partnering”
    • IP Protection
  • 3. Employment and Consulting Agreements
    • Sign it in advance
    • It’s still a contract for services…
    • Set scope of contemplated work and return
    • How can it end, and what are the terms?
    • NDA and IP, including non-competes
    • Understand the difference – is it really a duck?
    • Any consultant is a vendor – think implications – IT, taxes, privacy, RFP’s, insurance
  • 4. Commercial Contracts
    • You can’t give what you don’t have
    • When do you pay? How do you get it back?
    • Service levels and audit rights
    • IT – support, escrow, improvements, open source
    • Limitations and exclusions of liability
    • Boilerplate counts…
  • 5. Drafting is an Art…
    • Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms , unless and until terminated by one year prior to notice in writing by either party.
  • 6. Partnering
    • There is no joint venture legal entity
    • Agency, Reseller, Referral, Supplier, Corporation
    • Consider what’s not written on the napkin – who, what, when, where, how
    • Always be thinking IP and ownership
    • Implications of a true partnership
  • 7. IP Protection
    • Start from within – confidentiality, contracts
    • Patents vs. Trade Secrets
      • Patent: useful, novel (i.e. innovative) and non-obvious
      • Typically lasts for 20 years but can take 4-5 years
      • Must be disclosed
      • Cost of a patent infringement suit: $2M to $5M
      • Prior art search: www.uspto.gov
      • In US/Canada: one year from disclosure of invention to file for patent. In Europe, you can’t file after invention has been disclosed.
      • Canada: first to file. US: first to invent. Keep good notes
      • Provisional patent: establishes filing date and gives you 12 months
  • 8. Questions ? Joe Milstone ( [email_address] )