Under lock and key: protect your Internet company's IP.

• Author: Bryner, Bryan C.
• Position: Legal Brief

The Internet provides fertile ground for growing new businesses due to its easy access, wide reach and often low start-up capital requirements. But for an Internet business offering a product or service not offered elsewhere, the Internet's low barrier to entry can also lead to the business' downfall. That's because the business may have to compete with others who have easily imitated or copied its unique business concept.

While many measures can protect a unique Internet business, there are three basic elements of intellectual property that can help protect and preserve the unique identity and features of an Internet business.

1. Protect the Idea and Concept

   Business method patents provide the only means to prevent imitation of your business concept. It can protect a unique business idea, concept or overall business model from imitation by competitors, provided the idea is patentable. It could also protect specific functional components or features of an Internet business and website. Amazon.com's patent for its method of "1-click" shopping is an example.

   In 2008, a federal court in the case of In re Bilski changed the requirements for obtaining a business method patent. The new requirements are much stricter and have narrowed the availability of business method patents for Internet businesses. Bilski has been appealed to the U.S. Supreme Court, which is expected to issue an opinion this year. The extent to which business method patents will offer meaningful protection to Internet businesses will depend on whether the Supreme Court maintains or relaxes Bilski's strict requirements.

   Since the law is in flux, obtaining a business method patent could be difficult. Business method patents currently suffer from a five-year pendency, on average, in the patent office, a delay often too long for the fast-changing Internet.

   Regardless of how the Supreme Court rules, business method patents will continue to offer some protection for Internet businesses, whether for the entire business concept, for specific features or elements of a website, or both.

2. Protect the Brand

   Establishing and protecting the business' brand is just as important as protecting the business' idea. Even with patent protection, establishing and protecting a good brand early on is critical to a startup Internet business' success. An established and recognized brand can maintain the business' lead in the face of new competitors, so the need to protect it cannot be understated. This...