the diamond datascram diaries: diamond datascram development
TRANSCRIPT
Eric E. Packel, Andrew Cripe, Daniel L. Farris, Scott M.
Gilbert, Matt Todd
Diamond Datascram Diaries:Diamond Datascram Development
Datascram Development
• General Privacy Issues
• Internal Issues and Risks
• Product and Customer Privacy Issues and Strategies
• Protecting the program
• Patent?
• Copyright?
• Trademark?
• Trade Secret
• The Human Resources System
• Employment Agreements and Restrictive Covenant Drafting
Press Release
Tech Expert Launches Diamond Datascram
Skokie, IL, March 1, 2017/Newswire/--
Diamond Datascram, founded by nationally honored software developer DamienDiamond, announces the launch of Datascram™. Datascram is an amazing newsoftware solution which identifies and prioritizes data, providing businesses with asummary of outdated or unnecessary data which then can be easily and permanentlydeleted or moved offsite. Analysis and surveys show that 52% of information storedby organizations is considered dark data whose value is not known. Another 33% ofdata is essentially obsolete or redundant. Datascram pulls information from thebusiness’ systems, applies algorithms and removes or culls that redundant and darkdata.
Make data scram. Forever
The Company is based in Skokie, IL but intends to operate nationwide.
Diamond Datascram
Diamond Datascram
Overview of Privacy Issues
For Technology-Enabled Companies:
Internal Privacy & Security Compliance– Personnel
– Customer Data
– Intellectual Property Protection
Product/Customer Privacy & Security Considerations– Privacy By Design
– Customer Compliance
Internal Privacy Issues
Privacy Program Development– Security Program
– Personnel Data
– Industry Regulations/Standards Compliance (HIPAA, ISO, NIST, PCI)
– Multinational Regimes (EU – GDPR, Privacy Shield, APAC, etc.)
– Vendor Management
Initial Steps– Gap Analysis/Privacy Assessment
– Policy Development
– Employee Training
– Exercises and Audits
Internal Privacy Risks
The Cyber Skills Gap is Growing– Companies are investing more than ever in cyber security
– Despite that fact, the number of successful attacks is increasing
– Cybercriminals are becoming more sophisticated at a faster rate
Phishing Example– In 60% of cases, attackers compromise an organization in minutes
– Median time to first click is 1:22
– 50% of recipient open the email within the first hour, 23% clickthrough
99.9% of attacks exploit known vulnerabilities
Product Privacy Issues
Customer Compliance– Develop Using Privacy By Design
– Build to a Standard
– Consider Customer Controls
– Solve for Security and Onward Transfer
Risks– Eliminating Data that Must be Retained (Regulatory or Policy)
– Impact on IP (Old Data is Sometimes Useful in Product Development)
– Protected Data (PHI, PII, Personal Data)
– Breach
Mitigation Strategies
Use the NIST Framework or ISO 27001/2 as aGuide for Cybersecurity Planning
Due Diligence – internal/external (vendors)
Operational
Contractual
Cyber-Insurance
Operational Strategies
Privacy by Design/Security by Design
“Minimum Necessary”
– Don’t collect more than what you need
– Don’t retain longer than you need it
Adopt/Adhere to Written Data Security Compliance Program
– Adopt Framework Standards
– Flow down to contractors
Technical controls: (e.g. encryption on all devices/unless can justify why not)
Physical security (e.g., data center security; geographically remote data centers)
Administrative safeguards (cybersecurity training/ regular risk assessments/ riskmitigation plans/audits)
Breach notification plan/Incident Response Plan
Readiness for new cyber-threats (Chinese hackers, economic espionage)
Cyber-insurance
The Datascram Program
What protections apply?
• Patent?
• Trademark?
• Copyright?
• Trade Secret
High Level Distinctions
Patents:
• Limited duration property right
• Related to invention
• Granted by U.S. Patent and Trademark Office
• Public disclosure after grant
Protectable Materials forPatents
• Machines
• Manufactured articles
• Industrial processes
• Chemical compositions
Trademarks
• Word, phrase, symbol, design
• Distinguishes and identifies the source ofgoods from one party to another
Copyright
Protects original works of authorship such as:
• Literary
• Dramatic
• Musical
• Artistic
Patent Protection
• Authority for patents
• Patent process
• Applicability to a situation
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Authority for a Patent
U.S. Constitution – Article 1, Section 8, Clause 8The Congress shall have power ... To promote the progress of science anduseful arts, by securing for limited times to authors and inventors the exclusiveright to their respective writings and discoveries;
United States Code, Title 35Patentability governed by Sections 100 – 105
101 – Patentable Subject Matter (process, machine, manufacture, orcomposition of matter)
102 – Novelty (anticipation/prior art)
103 – Obviousness (person of ordinary skill in the art)
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Application– Provisional
– Non-Provisional
Office Action– Non-Final
– Final
Issue Fee
Grant
Term: For patents filed after 1995, 20 years from theearliest filing date of the application on which the patentwas granted…
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Patent Process
Patent Components
Inventor
Assignee
Date (Priority/Filing/Issue)
Cited References, etc.
Abstract (Short Summary)
Figures/Drawings
Background (Problem)
Summary (Overview)
Detailed Description
Claims
The Human Resources System
An Effective “Human Resources System” starts withcomprehensive Workforce Visibility– Employees and Owners
– Interns (or, “Interns”/free labor)
– Contingent Workers
– Consultants, Independent Contractors & Vendors
Adopt scalable and practical approach (the system needs togrow with the Company)
Consider the “Terms and Conditions” applicable to allCompany “Human Resources”– Legal duties & classifications (FLSA, tax code, etc.)
– Non-Employee agreement terms critical
Workforce Policies
Why/When Written Policies?
What Must You Include?
What Needs Updating—and Why?
Written Policies? The Basics
Define Expectations/Culture
Help Avoid Certain Contract Claims
Can Help Provide A Good Defense
Comply with Law
Certain Policies are “Musts”
Anti-Harassment/EEO/anti-retaliation
FMLA
Confidentiality
Open Door/Hotline
Drug/Alcohol
No Right to Privacy/Monitoring
Wages/TO
“Musts” expand with Company
Certain Policies are Nice toHave
Will depend on businessneeds & culture:
Vacation/sick leave, PTO
Code of ethics & businessconduct
Standards of personalconduct (dress code,attendance, etc.)
The times they are a-changing
Firearms policies
Social media policies
Workplace violence prevention (and domesticviolence leave)
Drug testing and medical or legal marijuana
Compliance complaint and investigationsprocesses & hotlines (a challenge at start up!)
Remember Section 7
Section 7 provides that“employees shall have theright to self-organization, toform, join, or assist labororganizations, to bargaincollectively . . . And to engagein other concerted activitiesfor the purpose of collectivebargaining or other mutualaid or protection.”
Confidentiality
Not OK:
-”Do not discuss ‘customer oremployee information’ outsideof work including ‘phonesnumbers and addresses”
-”Never publish or discloseconfidential or otherproprietary information.Never publish or report onconversations that are meantto be internal”
OK:-”No unauthorized disclosure of‘business secrets’ or otherconfidential information”
-”Do not disclose confidentialfinancial data, or other non-publicproprietary company information. Donot share confidential informationregarding business partners, vendorsor customers”
Conduct Toward FellowEmployees
Not OK:
-”Don’t pick fights online”
-”Material that is fraudulent,harassing, embarrassing,sexually explicit, profane,obscene, intimidating,defamatory, or otherwiseunlawful or inappropriate maynot be sent by email.”
OK:
-”Making inappropriategestures, including staring”
-”No use of racial slurs,derogatory comments, orinsults”
-”Threatening, intimidating,coercing, or otherwiseinterfering with the jobperformance of fellowemployees or visitors”
Interaction with Third Parties(including media)
Not OK:-”Employees not authorized to speakto representatives of the printand/or electronic media aboutcompany matters” “unlessdesignated to do so by HR, and mustrefer all media inquiries to thecompany media hotline”
-”If you are contacted by any gov’tagency you should contact the LawDep’t immediately for assistance”
OK:-”The company strives to anticipateand manage crisis situations in orderto reduce disruption to ouremployees and to maintain ourreputation as a high qualitycompany. To best serve theseobjectives, the company will respondto the news media in a timely andprofessional manner only through
the designated spokespersons.”
Company Logos, Copyrightsand Trademarks
Not OK:
-”Do not use Company logos,trademarks, graphics, oradvertising materials in socialmedia”
-Company logos andtrademarks may not be usedwithout written consent”
OK:-”Respect all copyright and otherintellectual property laws. Forcompany’s protection (and yourown), it is critical that you showproper respect for the lawsgoverning copyright, fair use ofcopyrighted material owned byothers, trademarks and otherintellectual property, includingEmployers, copyrights, trademarksand brands”
Employment Agreements andRestrictive Covenants
• Q: Who needs an employment agreement?
• A: Not everybody.
• Consider less restrictive means:
• Offer Letters
• RCA / NDA
• Employee Handbook / Policies
Employment AgreementsThe Basics
• Title and Duties• Other employment
• Term• At-will or defined time period
• If at-will, what is the consideration?
• Compensation• Any bonus structure must be clear or linked to a plan.
• Stock / Equity awards must be carefully worded and consistent withany governing plan documents
• Benefits• Health Insurance, Vacation, Auto Allowance, Expenses
• Compliance with other policies
Employment AgreementsAdditional Considerations
Severance?– Define Cause – Under what conditions will severance not be owed?
– Preconditions, i.e. executing a waiver and release
Restrictive Covenants
Intellectual Property
Return of Property
Governing Law and Venue Selection
Arbitration
Incorporation of other Agreements
Attorneys’ Fees
Non-Disclosure / Confidentiality
Intellectual Property and Inventions
Non-Compete
Non-Solicit
– Clients and Customers
– Vendors and Suppliers
– Employees and Contractors
Restrictive CovenantsWhat Falls Under That Umbrella?
Geographic and Temporal Scope
– Where and for how long?
– Consider job duties.
Scope of the Restriction
– What can’t be done?
– Who can’t it be done with?
Will the covenants adapt to the employee’schanging roles with the Company?
Proper Tailoring is Critical
Know the State of Affairs
State law typically governs enforceability.
– California and North Dakota – Nope.
– Some states have unique rules, i.e. Illinois,Louisiana, Oklahoma, South Dakota.
Have you considered consideration?
Choice of Law and Venue
Fast Start Employment Servicesfor Start-Ups
To receive yourcomplimentary copy ofthis document, pleasecontact your PolsinelliLabor and Employmentattorney, or emailnational Practice ChairNancy Rafuse [email protected].
Keep Your Secrets Secret
Simply having a confidentiality provision is notadequate – employers must takedemonstrable steps to protect their secrets.
– Password protection.
– Usage restrictions, including personal emailaddresses.
– Limited distribution and access.
Datascram Dominance
Next time – Datascram has caught on like fire! Looking to go public andglobal. Competition for top talent is fierce! Topics next time:
• HR considerations with Mergers and Acquisitions
• Hiring from Competitors
• Staffing Arrangements
• Global HR/Legal Issues
SAVE THE DATE – MAY 9, 2017
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