Protecting intellectual property in a social world

Julie Bhusal Sharma

When you walk into the brand new Industrious coworking space in the Pizzuti office building in the Short North, you'll notice one thing: You don't need X-ray vision to see through every office.

"All of our spaces are glass. All of the offices are glass. We really like how it creates that kind of social environment. You still get natural light regardless of wherever your office is, and you still get the beautiful view of the Columbus skyline," says Industrious Columbus Community Manager Atticus Garden.

But beauty can sometimes come at a cost. Glass means transparency and transparency means potential theft of intellectual property.

With the rise of coworking spaces in Columbus, such as Industrious, 400 West Rich in Franklinton, the Salt Mines in Clintonville and Qwirk in German Village-along with events like Dublin Entrepreneurial Center's "jelly" days, more individuals and companies are at risk of having expressions of ideas stolen.

Chris Sherman, 400 West Rich project manager, admits that privacy is likely factoring into why the open coworking spaces at the Franklinton hub haven't been filling up.

"The reason why it's been slow in my mind is because everybody wants the private space and I think that in California, where coworking is more popular, space might be a little bit more at a premium," says Sherman.

Consequently, 400 West Rich just finished building hybrid offices that are enclosed and smaller than private offices but are centered around the open coworking space, with walls that don't extend to the ceiling.

Industrious' co-founder, Jamie Hodari, didn't have to learn the hard lesson that Sherman did. Hodari says that the seed for Industrious, the not-too-social coworking space, came from experience. "All of our product is essentially private offices, a large part because my business partner and I launched the company because we were both working in open floorplan working spaces and found it impossible to really do very serious work in that environment-partly because of distraction, but partly because it made it really, really hard when you had to have a private conversation."

And conversations need to stay private when trying to protect a creation. It can take only a few alterations for a listener to get away with copying a coworker's creation. Thus, the access available in coworking spaces is a concern for some.

"With copyright infringement … Let's say I don't have any evidence that someone had access to the copy, if I can meet higher thresholds than 'substantially similar,' if I can meet the threshold of 'strikingly similar,' if it's just so darn close, that can be used to infer access," says Greg Krabacher, senior counsel at Bricker & Eckler. "The court can say, 'Well it seems pretty unlikely that someone could make something as close without any access.' So, if you don't have evidence of access, you can still make a case."

Despite the dangers, Bryan Gintz, a lead Android developer for Digital Intent, is one of the few who braves the public coworking space at 400 West Rich along with two others. He moved to the space in March from a regular office in Grandview Heights in hopes of an environment that would lend itself to natural networking and collaboration-and he's already started to team with his new coworkers as well as five renters of private offices.

"Tech is so specialized that often what you do can fit another person's need and what they do can fit a need for you. There's a lot of ability to fill in the gaps," says Gintz.

Gintz acknowledges there's a risk in coworkers stealing his ideas or designs through the collaboration process, but it's not a source of anxiety.

"I think that concern is there, but my opinion is that there's very little unique things being done-these days a lot of it is just finding better ways to do what you already do," says Gintz. "I think there's the aspect of someone probably has already thought of this, but there are a lot of things you can do to protect what you're trying to do- like get it out faster or build a better product and rely on the fact that your product will sell itself even if other people are doing it."

But why go through the trouble of working twice as hard when you could protect a creation from the get-go?

If security is a major concern, Industrious tenants can pay for a separate Internet line to be free from the risks of public Wi-Fi.

The Columbus space also features a secret room, but the name may be misleading. The room has an open-door no-reservations policy. "It's where members will go maybe if they want to schmooze a client a little bit and they can pour them a drink. Maybe they want to have a private meeting or maybe a couple members at 5 (p.m.) at the end of the work day just want to walk in, hangout and connect with each other," says Garden.

Though Industrious coworkers' ideas and discussions may not be concealed in the secret room, those who don't have single-person closed-in offices can snag one of two "phone booths" that are small rooms meant for private calls or just a second to be by oneself.

Still, Industrious may not be the perfect place for those who want only the highest security, according to Garden. But, it could become that place with use of legal help.

It's not unusual for laws to evolve and develop around a trend like coworking. Susan Rector, an Ice Miller partner who specializes in intellectual property ownership and information technology transactions, ponders the possibility of contractual agreements becoming commonplace in the coworking space.

"One way you can always try to prevent (theft of creations) is to have contractual agreements. So, very often, before an inventor goes to pitch someone to financially invest in his product, he would ask the person listening to sign a nondisclosure agreement saying that anything that I tell you about my product you agree to hold confidential," says Rector. "So you could, if you're running a colocation space, as a condition of having people paying rent to use the space, require them to sign a confidentiality agreement and someone might sign it on the theory that, "If I'm going to be in this space, talking about my products and my services, I don't want anyone to take my ideas.'"

Hodari has thought about contractual agreements for Industrious but came to the conclusion that for now, Industrious wants to be fairly hands-off, given the mature companies it hosts. He admits there may come a time when they have to change.

With coworkers often just starting out a business, it's not uncommon for them to resort to online fundraising platforms like Kickstarter and Fundable to propel their company. Wayne Embree, executive VP of Rev1 Ventures doesn't advise crowdfunding to his mentees. "It's very tricky raising money from people you've never met. It has all potential risks associated with that."

Ed Batchelor, a Columbus inventor, also found the online fundraising terrain to be problematic. Batchelor founded Mutable Motors, a startup that's inventing an engine that is redesigned while driving-meaning the engine's size virtually changes in action.

"I ended up canceling my (Fundable) fundraise because I felt I just was exposing myself too much if anyone did invest, and then I didn't know how I could go about advertising it without tripping myself up on the rules," says Batchelor.

Some aspects of his invention are already patented and he's waiting to hear back about patents for other parts. In the meantime, he protects his invention by not disclosing any specific details on its design. However, Batchelor explains that in his case, his biggest shot at having an investor capitalize on his invention is revealing those details to an investor who is a car fanatic-and that may mean risking possible theft if an investor isn't willing to keep specifics private.

"Some venture capital (firms) will refuse to sign (a non-disclosure agreement) because they don't want to be precluded if the next guy coming in has something similar," says Krabacher.

Coincidentally, one of Batchelor's greatest obstacles proves to be a source of protection for his engine.

"The federal government has grant programs to help researchers like me. Unfortunately, they also have a political process, because it's the government, and the politics of automobile technology today are 'We need to electrify cars. We need to have hybrid or plug-in vehicles,'" says Batchelor. Consequently, inventors are looking to receive those federal grants, making research on gasoline engines less popular and, in turn, lessening the probability that Batchelor's Mutable Motor model is stolen.

If an inventor is looking to legally protect his or her creation before potential exposure in an open workplace or fundraising online, there may be other complications. An entrepreneur could have a creation and not have the right to patent it, even if he or she was the first to invent something of its kind.

In 2013, the US changed from a first-to-invent to a first-to-file patent system that is prominent throughout the rest of the world.

"It's a challenge to startups, and they have the incentive to file faster," says Embree. Yet, if someone beats an entrepreneur to filing for a patent, there's still another option.

"In some cases, if another party already filed for your patent, it's worth calling them up and seeing if you can partner with them," says Embree. "And you can't assume that partner wouldn't want better technology."

Protecting intellectual property is a large concern for Embree when he is mentoring startups-but he doesn't think theft is the main reason as to why a startup fails.

"A large percent of companies fail because no one wants their product," says Embree.

In the case when a product is desired, Embree says stealing that product's design is not common.

If you can't beat 'em, join 'em. That's the mindset that Embree claims many large companies have when it comes to enviable products or services that startups are developing. "We have someone working full-time just on finding these large companies that want to buy shares (of our startups)," says Embree.

However, sometimes the occasional theft of legally protected materials happens.

"We've had companies come up with a logo and larger companies come up with the same logo after. It's difficult to call these big companies saying, 'Hey, you're treading on my territory,'" says Embree. "I tried to get one of our startups to do that but they wouldn't."

Whether or not there's been an increase in intellectual property cases due to the rise of social exposure, Krabacher claims there's definitely been a change in how lawyers are doing their work.

"Whenever there's a change in technology, either in how they communicate or how they work, we see a change in our business that reflects that. It's not necessarily an increase or a decrease, but we'll see different types of requests," says Krabacher. "So, in this environment, we run into issues dealing with privacy that maybe weren't as big of a deal previously."

Julie France is editorial assistant.