Responding to Unsolicited Ideas While Avoiding Claims of IP Theft

04 February 2014 IP Litigation Current Blog

A company’s receipt of unsolicited ideas for new products or product modifications can create significant risks. The receiving company may have similar products or improvements under development or may undertake these efforts in the future without any actual knowledge that the unsolicited idea was sent or received. In such a situation, the receiving company going forward with its own independently developed products risks a claim that it knowingly stole the intellectual property of the sender.

To minimize this risk, unsolicited ideas must be carefully dealt with.

First, the internal distribution of this kind of correspondence and its content should be rigidly controlled and documented. Forwarding an e-mail with unsolicited ideas to everyone in the engineering group with a “What do you think?” notation may taint everyone in that group. If any member develops something similar in the future, an argument can be made (regardless of its actual merits) that the idea originated with the sender.

Second, a response is required. This should include a confirmation that the correspondence was unsolicited, that the company does not accept or consider unsolicited ideas, and that the receiver owes no duty of confidentiality to the sender. The responsive correspondence should also indicate that the receiving company will not enter into a confidential relationship with the sender. Ideally, the letter would solicit an express or implied acknowledgement of these facts.

Third, where a submission relates to ideas or inventions the receiving company is presently developing, legal counsel should be consulted. Legal counsel may then want to ensure that past development efforts are properly documented and more fully respond to the original letter.

To minimize the risks associated with unsolicited ideas, companies should consider adopting an unsolicited idea policy in which they emphasize that they will not accept or consider such submissions. The policy might further indicate that the receiving company has no obligation to review or maintain the confidentiality of any submission made contrary to the policy and that such submissions will be considered the property of the receiver, who can use the submissions as they see fit without an obligation to compensate the sender. This policy can then be restated in response to any unsolicited submissions.

While such a policy cannot eliminate all risks of liability, when coupled with a clear policy (and preferably clear documentation) regarding the handling of correspondence including unsolicited ideas, it can provide strong evidence that may help a company obtain a successful resolution of any future issues.

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