Crowdfunding IP Checklist: Pre-Disclosure Filing Sequence, Campaign Content Clearance, Backer and Reward Terms, Manufacturing Agreements, and Copycat Enforcement

By Casey Scott McKay · 2024-07-26

This checklist audits a crowdfunding project in the order the work must happen, and the order is set by a single irreversible event. The campaign launch is a public disclosure of an unreleased product, and every patent and design right outside the grace period jurisdictions disappears that morning. Everything in the first half of the checklist therefore has a hard deadline. It covers the disclosure audit, the pre-launch filing sequence and how to draft a provisional that supports what is later claimed, the freedom-to-operate search founders never run, campaign content clearance, platform terms, reward tier design, manufacturing agreements negotiated before the raise, assignment paperwork, fulfilment communications, copycat enforcement, and the financing diligence where every shortcut surfaces.

IP and Technology > IP and IT in Corporate Transactions | Checklist | Published 26 July 2024 - Updated 6 February 2025 | Casey Scott McKay - marksy.us

Summary. This checklist audits a crowdfunding project in the order the work must happen, and the order is set by a single irreversible event. The campaign launch is a public disclosure of an unreleased product, and every patent and design right outside the grace period jurisdictions disappears that morning. It covers the disclosure audit, the pre-launch filing sequence and how to draft a provisional that supports what is later claimed, the freedom-to-operate search, campaign clearance, platform terms, reward tier design, manufacturing agreements negotiated before the raise, assignment paperwork, fulfilment communications, copycat enforcement, and financing diligence.

Keywords: crowdfunding checklist · disclosure audit · provisional drafting · design applications · freedom to operate search · campaign clearance · platform content licence · reward tier review · manufacturing terms before launch · tooling ownership · assignment paperwork · export classification · copycat takedown sequence · customs recordation · financing diligence

How to use this checklist

| Phase | What it produces | Who runs it | Gate | |---|---|---|---| | 1. Disclosure audit | What has already been shown, and when | Counsel | Clock position established | | 2. Filings | Provisional, designs, trademark, content | Counsel | All filed before launch | | 3. Freedom to operate | A documented search | Counsel | Search before tooling | | 4. Campaign clearance | Licences, releases, substantiation | Counsel and marketing | Nothing unlicensed in the video | | 5. Platform terms | An explained agreement | Counsel | Content licence understood | | 6. Rewards | Tiers and stretch goals reviewed | Counsel and founders | Deliverable as designed | | 7. Manufacturing | Terms agreed before the raise | Counsel and founders | Tooling ownership fixed | | 8. Assignments | Signed, present-tense, from everyone | Counsel | Departed co-founder included | | 9. Fulfilment | Reviewed updates and a refund policy | Counsel | Policy written before needed | | 10. Enforcement and diligence | A takedown sequence and a clean file | Counsel | Registrations in hand |

The matter. Two founders with a working prototype, an agency booked to film in three weeks, a factory quoting from drawings already emailed to it, a co-founder who left last year without signing anything, and a launch date eight weeks out. Nothing is filed. The product connects to a phone over a standard wireless protocol. Neither founder has heard the phrase "grace period."

Phase 1. Audit what has already been disclosed

[ ] Establish the launch date and treat it as immovable, because the founders will.
[ ] Explain what happens that morning. 35 U.S.C. § 102 gives a one-year grace period from a disclosure by the inventor; most commercially important jurisdictions give none.
- Why. A campaign launched before filing surrenders patent and design rights in the markets where products are manufactured and where copies are made, which is the only place the loss matters.
[ ] Catalogue prior disclosures: trade show appearances, press previews, demonstration videos, product pages already live, and investor decks circulated without confidentiality.
[ ] Determine whether a clock is already running, since the campaign may not be the first disclosure.
[ ] Check whether anything was shown under confidentiality and whether the agreement actually covered it.
[ ] Put the whole sequence on one page with dates, because founders manage a production schedule and treat legal work that is not on it as optional.
[ ] Lead with the deadline rather than the list, since "every patent right you have outside this country disappears the day the campaign goes live" gets attention and a list of recommended filings does not.
[ ] [Gate] No launch date is confirmed publicly before the filing sequence is scheduled against it.

Phase 2. File before disclosure

[ ] File a provisional application under 35 U.S.C. § 111, which establishes a priority date, requires no claims, and gives twelve months to file complete.
[ ] Draft it from an interview with the engineer, not the founder. The person who solved the problem knows what the invention is; the person presenting the campaign knows what the product is.
[ ] Describe the mechanism, not the product. A provisional reading like a marketing page supports nothing; the disclosure must say how it works — structure, mechanism, sequence, ranges, and alternatives.
[ ] Cover the variants that were rejected, since manufacturing will change the design and the shipped product may match an embodiment the provisional never described.
[ ] Include every drawing that exists. A provisional is not examined and there is no penalty for including material; there is a substantial penalty for omitting the drawing that would have supported the claim.
[ ] Budget two to three times what the founders expect.
- Trap. A provisional supports later claims only to the extent it discloses under 35 U.S.C. § 112, and a marketing deck filed as a provisional produces a date attached to a disclosure that supports nothing — while the founder believes they are protected.
[ ] File design applications under 35 U.S.C. § 171 on anything with a distinctive appearance, noting that the total profit remedy at 35 U.S.C. § 289 makes them unusually potent against a copyist.
[ ] Preserve the international routes, since both the patent and design international filing systems depend on a priority filing that precedes disclosure.
[ ] File an intent-to-use trademark application under 15 U.S.C. § 1051 after clearance, since a name that cannot be registered is a rebrand after the money is raised and the packaging is printed.
[ ] Register the campaign video, photography, and copy, which is inexpensive and is the fastest route against copycat listings that reuse them.
[ ] [Gate] Nothing is published, previewed, or shown until every filing in this phase is on file.

The twelve months after launch

The grace period runs through the worst period of the project, and walking a founder through the timeline is what persuades them to diarise the deadline on day one.

A campaign launches in January and funds in February. Tooling is commissioned in March against a design that changes in April. First articles arrive in June, fail, and are revised. Production runs in August. Fulfilment slips to October and completes the following February.

The complete application deadline falls in January of that following year — the month the founder is managing the tail of fulfilment, a cash position depleted by tooling overruns, and the first customer service wave. It is the worst possible moment to instruct patent counsel and to fund a complete application, an international application, and national phase decisions.

[ ] Budget the filing before the raise is spent. Money allocated to tooling and fulfilment is money unavailable for prosecution, and a campaign that raised exactly enough to ship raised too little.
[ ] Decide the international position in month three, since an international application preserves options at moderate cost and the decision is straightforward early and impossible under pressure.
[ ] Reassess what the product has become before drafting complete, since manufacturing changed the design and the divergent parts carry a later filing date.
[ ] Set reminders at nine and eleven months addressed to somebody other than the founder, who will be in a factory.
[ ] Treat an abandoned deadline as a decision, not an accident. Where the money genuinely is not there, letting the provisional lapse is a legitimate choice, and recording it as a choice is materially better than discovering it later as an omission.

Phase 3. Run the freedom-to-operate search

[ ] Explain the asymmetry. A campaign publishes a detailed description of the product to an audience including every competitor and rights holder in the category, which makes it the most efficient possible mechanism for attracting an assertion letter.
[ ] Explain the leverage. The letter arrives while the founder holds backers' money and cannot stop, and an injunction against shipping is an existential event that every rights holder sending a letter understands.
[ ] Search the technical field, in the manufacturing and sales jurisdictions as well as domestically.
[ ] Search the design landscape for similar-looking articles.
[ ] Search the name in the relevant classes and jurisdictions.
[ ] Check the components. A product incorporating a bought module, a licensed technology, or an open source library carries whatever those bring, and a bill of materials with licence identification is a prerequisite.
[ ] Check standards exposure, since a connected device implements standards covered by declared-essential patents and a hardware startup shipping one has an exposure it has not priced.
[ ] Document the search, since the enhanced damages analysis after Halo Electronics, Inc. v. Pulse Electronics, Inc. turns on the accused infringer's conduct and state of mind.
[ ] [Gate] No tooling is commissioned before the search is complete, because designing around is possible before tooling and not after.

Phase 4. Clear the campaign as advertising

[ ] Check the music licence permits commercial and advertising use.
- Trap. Stock library licences frequently exclude exactly what a campaign is, and this is the most common clearance failure in the sector. It generates a takedown at the worst possible moment.
[ ] Check every piece of footage and imagery, including stock, third-party photographs, and material found online.
[ ] Assess third-party trademark use: comparisons to named competitors, compatibility claims, and logos of platforms or standards bodies. Nominative use permits some of it; implying endorsement does not.
[ ] Obtain releases from everyone appearing, covering the commercial use a campaign constitutes, and from backers appearing in later updates.
[ ] Substantiate every claim. Performance, comparative, and environmental claims are advertising claims, and a campaign promising specifications the product does not meet is exposed to competitors under 15 U.S.C. § 1125 and to backers and regulators under consumer protection law.
[ ] Disclose prototype status where renderings are shown, since a photorealistic image of a product that has never been built is a representation about it.
[ ] Check team, experience, and adviser claims, which are representations and which regulators cite when inflated.
[ ] Clear the brief rather than the finished video, since a cleared brief costs nothing and a recut costs a week of the launch schedule.
[ ] [Gate] Nothing goes to final edit with unlicensed music or footage in it.

Reading the campaign page as a lawyer

Before the page goes live, read it once end to end with three questions in mind. It takes an hour and it catches most of what generates later complaints.

What does this promise? Not what does it say — what would a backer believe they are getting. Specifications, dates, materials, capabilities, and quantities. Every one of those is a representation and several will have been written by someone optimising for conversion.

What of this is not yet true? Renderings presented as photographs, capabilities demonstrated in a rigged prototype, manufacturing partners described as engaged when they have quoted, and certifications described as obtained when they are planned. Each needs either substantiation or a qualification.

Whose material is on this page? Music, footage, photographs, fonts, logos, product images from third parties, and the faces of everyone appearing. Each needs a licence or a release, and the ones without either are the ones that generate a takedown mid-campaign.

[ ] Check the headline claim specifically, since it is what gets quoted and shared and it is written last, after the review everyone agreed to.
[ ] Check the comparison table if there is one, since comparative claims against named competitors are actionable and the table is invariably drafted by marketing from public specifications rather than from testing.
[ ] Check the timeline graphic, which is a delivery representation presented as a plan.
[ ] Check the "about us" section for experience and affiliation claims.
[ ] Read the FAQ, where founders answer questions candidly and create commitments the main page carefully avoided.

Phase 5. Read and explain the platform terms

[ ] Read the content licence. Platforms typically take a broad promotional licence to campaign material and several draft it to survive the campaign indefinitely, which means a founder wanting exclusive control of the video later may not have it.
[ ] Confirm where fulfilment responsibility sits, which the terms place on the creator and disclaim for the platform.
[ ] Record the fund release schedule, fees, and any reserves held against refunds.
[ ] Note the campaign removal rights, including removal on a third-party intellectual property complaint — which is what makes Phase 3 urgent rather than prudent.
[ ] Read the dispute resolution provisions, where arbitration clauses and class waivers are enforceable in principle following AT&T Mobility LLC v. Concepcion.
[ ] Treat the backer list as a customer list with the privacy obligations that attach.
[ ] Check prohibited categories, prototype disclosure rules, and restrictions on selling elsewhere during or after the campaign.
[ ] [Gate] The founders have been told in writing what they are agreeing to before they accept.

Phase 6. Review the rewards and the stretch goals

[ ] Confirm the campaign is not offering securities. Reward crowdfunding conveys no equity, and language like "back us and share in our success" creates securities questions the founders did not intend.
[ ] Treat the pledge as a contract for goods to be delivered, with consumer protection consequences including delivery obligations and remedies for non-delivery.
[ ] Establish whether distance selling or mail order rules apply in the jurisdictions where backers are located.
[ ] Review the tier structure for deliverability.
- Trap. Limited editions, early numbers, and personalised items are designed around funding psychology and are hard to fulfil at scale and impossible to unwind.
[ ] Review the stretch goals, since a feature added because a funding threshold was reached is a commitment on the same footing as the base product and stretch goals are the most common source of the specification creep that makes a campaign undeliverable.
[ ] Price international shipping, duties, and customs, which founders cost at zero and which consume margin during fulfilment.
[ ] Warn about personal exposure, since regulators have treated failed campaigns as deceptive practice matters rather than contract disputes and the exposure is personal where the entity is thin.
[ ] [Gate] No tier or stretch goal publishes that the founders cannot describe how they will fulfil.

Phase 7. Agree the manufacturing terms before the raise

[ ] Explain the timing problem. After the raise the founder negotiates against a factory that knows there is a public delivery commitment and backers' money in the account, which is the weakest negotiating position available. Before the campaign the founder is a prospective customer.
[ ] Fix tooling ownership, since whoever owns the tooling controls production and a campaign that spends its raise on moulds it does not own has funded a competitor's capability.
[ ] Mark and protect technical data. Drawings and specifications are the manufacturable form of the design, protected by trade secret and contract rather than usefully by copyright, and requiring marking and terms specific to technical data to satisfy the reasonable measures element of 18 U.S.C. § 1839.
[ ] Prohibit overruns and secure audit rights over production records and inventory, since authorised units produced outside the order are physically genuine, legally unauthorised, and sold through channels the founder cannot reach.
[ ] Allocate improvements, since the factory solves manufacturing problems during production and absent a term keeps the solutions.
[ ] Flow confidentiality down to sub-tier suppliers, who see the design and are outside the agreement.
[ ] Fix minimum volumes and exit, since a founder committed to volumes the campaign cannot absorb has a cash problem and one who cannot move production without rebuilding tooling has no leverage next time.
[ ] Classify for export before the first drawing is emailed. Most consumer hardware is uncontrolled; encryption above certain thresholds, sensors, navigation technology, and thermal imaging are the exceptions.
[ ] Screen the factory and distributors under restricted party obligations, which apply to small companies as to large ones.
[ ] Check the foreign filing licence position under 35 U.S.C. § 184, noting that 35 U.S.C. § 185 makes an unlicensed foreign filing a ground of invalidity and that the licence usually issues with the domestic filing receipt.
[ ] [Gate] No drawing is sent to a factory before the export classification is recorded and the confidentiality terms are in place.

Phase 8. Get every assignment signed

[ ] Obtain a present-tense assignment from the video producer. Copyright vests in the author absent an assignment and paying for work does not transfer it. The work made for hire route under 17 U.S.C. § 101 is narrow for commissioned works, though audiovisual work is one of the enumerated categories, which makes video one of the few cases where it can properly be used.
[ ] Obtain one from the photographer, since the photographs are the asset that removes copycat listings.
[ ] Obtain one from the industrial design consultancy, whose retained rights surface when the founder wants to modify the design or change consultancies.
[ ] Obtain one from contract engineers and prototyping firms, whose quotations routinely omit assignment entirely.
[ ] Obtain one from the brand designer, whose unassigned logo is printed on every unit shipped.
[ ] Obtain one from firmware and software contractors, with a bill of materials identifying open source.
[ ] Obtain one from the co-founder who left.
- Why. This is the most common title defect in the sector. The departed founder owns a share of the work, the campaign is raising money on contested title, and the assignment is far cheaper from someone who parted amicably than from someone who has watched the product succeed without them.
[ ] Use present-tense language signed before work starts, for everyone, including friends.
[ ] [Gate] No campaign launches with an unassigned contributor to any shipped or published asset.

Phase 9. Manage fulfilment communications

[ ] Route delivery date changes through review. A stated date the founder knows is unachievable is the fact pattern regulators have used, and the distinction between optimism and misstatement turns on what was known when the statement was made.
[ ] Check causal explanations, since an update blaming a factory or a component shortage is a statement about the cause and an inaccurate one compounds the problem.
[ ] Insist on communication during bad periods, since campaigns that go silent generate complaints, chargebacks, and regulatory attention faster than those reporting honestly.
[ ] Disclose specification changes before shipping, since a product delivering less than promised is something other than what backers paid for.
[ ] Write the refund policy before it is needed — who, on what basis, from what funds — because the money is in tooling and the requests arrive when there is none.
[ ] Treat backer classes consistently, since partial fulfilment creates groups with different positions and inconsistent treatment produces the grievance that reaches a regulator.
[ ] Clear images in updates on the same basis as the campaign.
[ ] Retain every update as sent, since they are the record of what was said and when and they will be produced.
[ ] [Gate] No update stating a delivery date goes out without someone confirming the date is believed.

Phase 10. Enforce, and prepare for diligence

[ ] Send copyright claims first, for speed. Copyists use the campaign's own photography because they have no product to photograph, and a notice under 17 U.S.C. § 512 removes the listing through an automated process. Registration before the infringement preserves statutory damages under 17 U.S.C. § 504.
[ ] Follow with trademark claims where the name is used, under 15 U.S.C. § 1114, which is clean where the application was filed before launch.
[ ] Use platform design programmes once a design patent has issued, expecting them to move slowly because the platform must compare designs.
[ ] Use counterfeit programmes where the mark is reproduced, with the remedies at 15 U.S.C. § 1116 and 15 U.S.C. § 1117 supporting litigation against commercial-scale sellers.
[ ] Record marks with customs before the first shipment, since border seizure is available and is worth arranging before the first copy.
[ ] Expect repeat sellers, since removing a listing removes a listing and the operator returns under another account. Account-level enforcement and occasional litigation with an asset freeze change behaviour.
[ ] Do not expect the patent to help now, since prosecution takes years and copies arrive in weeks.
[ ] Assemble the diligence file: chain of title for every asset; the disclosure timeline; what the provisional actually discloses read against the shipped product; the international position; undelivered reward liabilities; the campaign and update record; the manufacturing agreement; and the open source inventory for shipped firmware.
[ ] Diarise the complete application deadline on launch day, with reminders at nine and eleven months addressed to somebody other than the founder.
[ ] [Gate] The diligence file is assembled before the round opens, not during it.

Working with founders who did not plan to hire a lawyer

The advice in this checklist reaches a fraction of the campaigns that need it, and the reason is structural. A crowdfunding project is built by people whose expertise is design, engineering, or marketing, and the natural sequence — prototype, film, write, launch — contains no moment at which a lawyer is obviously required.

[ ] Lead with the irreversible fact, in one sentence, before anything else. Founders who have never engaged with intellectual property understand a deadline; they do not respond to a list of recommended filings or to a general description of risk.
[ ] Price the first engagement to be taken. A fixed-fee pre-launch review — disclosure audit, filing sequence, clearance list, assignment paperwork, and manufacturing headlines — that a two-person team can afford is worth more in aggregate than an hourly engagement they decline.
[ ] Give them the sequence as a one-page schedule with dates, because founders manage a production plan and legal work that appears on the plan gets done while legal work described in an email does not.
[ ] Accept partial engagement. A founder who files a provisional and does nothing else is materially better off than one who does nothing, and insisting on the full programme produces the second outcome.
[ ] Name specific consequences rather than risks. Not "there is exposure" but "the factory will own the tooling and you will not be able to move production." Specific consequences change behaviour.
[ ] Tell them what to do if they cannot afford everything, in priority order: the provisional, the assignments, the tooling clause, and the content registration. The rest can wait; those four cannot.

A note on order

The phases are ordered by a hard external deadline rather than by importance, which is unusual and is the point.

Everything in Phases 1 through 8 has to happen before the launch. That is not a preference; the filings become unavailable, the manufacturing leverage evaporates, the campaign content is published unlicensed, and the assignments become expensive. A checklist for any other kind of client can be worked through at a sensible pace. This one has eight weeks.

Within that constraint, the disclosure audit is first because it determines whether the clock has already started, and a project that disclosed at a trade show four months ago has a different sequence from one that has shown nothing.

The filings are second because they take time to draft properly and because the founders will try to compress them. Filing feels like it can happen any time and the video cannot; the truth is the reverse.

The freedom-to-operate search is third and gates tooling rather than launch, which gives it a slightly later deadline and makes it the phase most often dropped when the schedule tightens. Dropping it is the decision that produces the assertion letter.

Campaign clearance, platform terms, and reward review run in parallel with the agency's production schedule rather than after it, because a cleared brief costs nothing and a recut video costs a week.

Manufacturing terms sit at Phase 7 in the list and should be opened in week one, since a factory negotiation takes longer than any other item here and the leverage is entirely a function of timing.

Assignments are last before launch because they are quick, and they are the item most likely to be forgotten for exactly that reason.

Phases 9 and 10 run for the following year and beyond, and they are the phases a founder deep in fulfilment will neglect without a diary entry and a reminder addressed to someone else.

The copycat response, in the first week

Copies appear within days of a campaign trending. This is systematic rather than incidental: operations monitor campaign pages, source similar products, and list them at lower prices, frequently before the original ships to backers. Having the response ready before it happens is the difference between removing a listing in a day and discovering, mid-campaign, that nothing was registered.

[ ] Set up monitoring before launch, covering the major marketplaces and the product name, so the first listing is found by the founders rather than reported by a backer.
[ ] Have the registration certificates to hand, since a notice referencing an unregistered work is slower and weaker than one referencing a registration number.
[ ] Prepare the notice template in advance, with the registration details, the original publication dates, and the identification of the infringing material filled except for the listing.
[ ] Take dated screenshots of every listing before sending anything, since listings change and disappear and a claim built on a remembered listing fails on proof.
[ ] Make a test purchase where the product is physical, which establishes what is actually being sold and produces evidence supporting both the platform complaint and any later claim.
[ ] Track the sellers rather than the listings, since the same operator returns under another account and the pattern is what supports account-level enforcement.
[ ] Do not send notices you cannot support, since a misrepresentation carries its own liability and an unsupportable assertion invites a declaratory action from a seller with more resources than expected.
[ ] Tell the backers, briefly and factually, since a founder who addresses the copies openly retains the goodwill that a founder who says nothing loses to the cheaper listing.

[ ] Confirm the entity that will hold the rights exists and is the one contracting, since founders routinely file, contract, and campaign in a mixture of personal names and a company incorporated halfway through, leaving assets distributed across parties nobody intended.

Outcome. A project that has run this checklist reaches its launch with a provisional that supports what it will claim, design applications on file, a cleared campaign, a manufacturing agreement negotiated from strength, signed assignments from everyone who touched the product, and registered photography that removes a copycat listing in a day. Every one of those is unavailable after the launch, and the launch is eight weeks away in every version of this engagement.

Equity campaigns

Where the campaign offers securities rather than rewards, everything above applies and a great deal is added.

[ ] Treat it as a regulated offering. Securities crowdfunding proceeds under an exemption with limits on amounts raised, a mandatory registered intermediary, prescribed disclosure, ongoing annual reporting, and resale restrictions.
[ ] Apply the same filing sequence, since an offering document describing the technology is prior art on the same terms as a campaign page. Founders treat the offering as a financial exercise and forget that it publishes the product.
[ ] Check every intellectual property statement in the offering document.
- Trap. Describing a provisional as a patent, or an application as granted, is a misstatement in a securities offering rather than loose marketing language, and it carries liability a campaign page does not.
[ ] Resolve chain of title before disclosure, since it becomes a disclosure item rather than a diligence finding and a company that cannot describe its ownership accurately should not be describing it.
[ ] Diarise the ongoing reporting, which carries the same accuracy obligations and raises a disclosure question when an application is abandoned or a claim rejected.
[ ] Treat investor lists as personal data.
[ ] Observe the exemption's conditions strictly, since advertising restrictions, intermediary requirements, and investment limits are conditions rather than guidance and a breach can convert a completed raise into a rescission problem.
[ ] Bring securities counsel in from the outset, because the intellectual property work is a component of a larger regulated exercise rather than the main event.

Key Authorities at a Glance

| Authority | What it settles | Phase | |---|---|---| | 35 U.S.C. § 102 | Novelty, public disclosure, and the grace period | 1, 2 | | 35 U.S.C. § 111 | Application, including provisional applications | 2 | | 35 U.S.C. § 112 | Written description and enablement | 2 | | 35 U.S.C. § 171 | Design patents | 2 | | 35 U.S.C. § 289 | Total profit remedy for design patent infringement | 2, 10 | | 35 U.S.C. § 103 | Obviousness | 2 | | 35 U.S.C. § 184 and § 185 | Foreign filing licence and invalidity for its absence | 7 | | Halo Electronics, Inc. v. Pulse Electronics, Inc. | Enhanced damages turn on the infringer's conduct | 3 | | 15 U.S.C. § 1051 | Application, including intent to use | 2 | | 15 U.S.C. § 1114 | Infringement of a registered mark | 10 | | 15 U.S.C. § 1125 | False designation of origin and false advertising | 4, 10 | | 15 U.S.C. § 1116 | Injunctive relief and ex parte seizure | 10 | | 15 U.S.C. § 1117 | Damages and statutory damages for counterfeiting | 10 | | 17 U.S.C. § 101 | Definitions including work made for hire | 8 | | 17 U.S.C. § 504 | Damages, including statutory damages | 10 | | 17 U.S.C. § 512 | Notice and takedown | 10 | | 18 U.S.C. § 1839 | Reasonable measures element of trade secret status | 7 | | AT&T Mobility LLC v. Concepcion | Arbitration clauses and class waivers enforceable | 5 |

The five things people get wrong

One: treating the launch as a marketing date rather than a legal deadline. It is the single irreversible event in the whole project. Every patent and design right outside the grace period jurisdictions ends that morning, and no amount of subsequent diligence recovers them. Founders do not know this, nobody in their orbit tells them, and by the time a lawyer is involved the campaign has funded and the loss is complete.

Two: filing a marketing deck as a provisional. A provisional supports later claims only to the extent it discloses. A document describing what the product does, why it is better, and who it is for supports nothing, and the founder walks away believing they are protected for twelve months. The fix is an interview with the engineer, a description of the mechanism, every drawing that exists, and a budget two to three times what the founders expected.

Three: never running the freedom-to-operate search. The campaign is the most efficient possible mechanism for attracting an assertion letter, and the letter arrives while the founder holds backers' money and cannot stop shipping. Every rights holder who sends one understands that leverage. The search costs a fraction of answering a single assertion and identifies a design-around while designing around is still possible — which is before tooling, not after.

Four: negotiating the factory agreement after the raise. By then there is a public delivery commitment and money in the account, and the factory knows both. Tooling ownership, overrun audit rights, improvement allocation, and exit terms are all obtainable from a prospective customer and unobtainable from a desperate one. The founders will resist doing this before the campaign because the campaign might not fund; the answer is that if it funds, this is the last moment they had any leverage.

Five: the co-founder who left without signing anything. Two or three people build a product, one departs before the campaign, and no assignment was ever executed. The departed founder owns a share of the work, the campaign raises money on contested title, and the problem surfaces eighteen months later in a venture diligence exercise — at which point the person concerned has watched the product succeed without them and is not inclined to sign for nothing.