Often, founders already have at least one innovative concept in mind at the time they agree to form a startup. To avoid any disputes, particularly if any founder later leaves the startup, the rights to that concept (and any other innovative concept created by each founder) should be specified in the Founders Agreement as owned by the startup. That ownership provision should extend to future innovations upon their creation.
To memorialize the startup’s ownership rights, the Founders Agreement (whose IP provisions are often very similar to those of an Employment Agreement or Consulting Agreement) also should mandate that the founder promptly and formally execute a written assignment to the startup of any innovative concept (including any patent rights to that concept) that the founder creates while an owner or employee of the startup, whether or not within the technical realm of the startup or using any startup resources.
The Founders Agreement likewise should address any trade secrets created by any founder, requiring formal documentation, marking, and disclosure of the trade secret to the startup to evidence the startup’s ownership of that trade secret.
Along those lines, the Founders Agreement should obligate each founder to honor the confidentiality of each of the startup’s trade secrets, including a promise to not disclose any secret to anyone outside the startup (except under the protection of a formal NDA) or to use the trade secret except to benefit the startup.
The IP ownership provisions of the Founders Agreement should likewise apply to all forms of IP, including marks and copyrightable works.