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Protecting Your Intellectual Property When Working with MEMS Foundries

By February 13, 2017July 16th, 2020Blog
Intellectual Property - Folder Name in Directory.

What do you need to know about protecting your intellectual property (IP) when working with a MEMS foundry?

It is best to consider the question up front because you and your foundry may need to share trade secrets and sensitive process information.

Here’s a look at the importance of executing a non-disclosure agreement (NDA) with your MEMS foundry, what it should include and when it should be in place.

MEMS foundries and Intellectual Property Protection

In my previous blog post, I wrote about six essential things for which to look when seeking a MEMS foundry partner. In this article, I will focus on protecting your intellectual property.

The good news is that foundries are typically careful about honoring proprietary information.  Nevertheless, it is important to have a clear understanding of whether your foundry considers any particular process technologies their IP.

Foundries can develop process modules that they consider trade secrets, and your foundry may consider some process technologies, e.g., through-silicon vias (TSVs), as proprietary. Likewise, your company might be sharing some of its own sensitive technology with the foundry. In such close collaborative relationships, the exchange of confidential information is essential.

How then, do you protect yourself?

A patent grants you the sole right to exclude others from making, using, or selling your invention but a non-disclosure agreement (NDA) creates a confidential relationship between two parties in order to protect proprietary information. Be sure to have an NDA in place before you disclose any sensitive information to a foundry. An NDA may be set up unilaterally, protecting only your company’s information; however most foundries will request that you enter into a bilateral (or mutual) NDA, which also covers their information under the agreement.

Follow this simple checklist to ensure that your NDA provides a structure that will allow you to feel comfortable disclosing sensitive information to your foundry partner.

Your NDA should cover:

  1. How information may be disclosed and how it should be identified as confidential.
  2. A definition of who will have access to the confidential information. For example, information considered confidential should only be disclosed to employees on a need-to-know basis.
  3. A qualifying statement that indicates that the party receiving confidential information will protect that confidential information from unauthorized use and disclosure.
  4. The term of the agreement, which is usually between one and three years.
  5. How long the information should be kept confidential, which is usually between three and seven years.
  6. A statement defining under which circumstances information no longer qualifies as confidential. For example, the NDA might include the following language:

“This agreement does not apply to information that is rightfully received from a third party, independently developed by the receiving party, or has become publicly available through no wrongdoing of the receiving party.”

An NDA will include heaps of other legal jargon to support the main components. Always have an attorney develop an NDA that works best for you.

Now that we have covered protecting your intellectual property, how should you work with your MEMS foundry? That will be the subject of my next post.

Part II: Finding a MEMS foundry: IP Protection is the second in a three-part series on Finding a MEMS Foundry, written exclusively for EDN. Read this post and look for the third in the series in my ongoing Fabricating the Future contributions.