There are many reasons why you may want to legally protect your invention. Obtaining a patent will allow you to be able to make a claim for patent infringement if someone copies or uses your patent without your permission. Similarly, obtaining a copyright will allow you to recover against a person who infringes on your copyright.
However, in some situations you may not have a copyright or patent, but still wish to protect your invention. For instance, you may want to be able to share your invention, before going through the patent process, with people who may be interested in manufacturing or distributing it, or persons interested in purchasing or licensing it.
Further, you may have an invention that is not able to be patented for one reason or another, but is still commercially valuable. In both situations, it may be in your best interest to take certain measures in order to ensure that no one steals your invention. Below is a discussion of other options available for protecting your invention, besides obtaining a patent for your invention, or obtaining a copyright on the idea.
Does the Patent and Trademark Office Offer Any Protection, Before a Patent is Obtained?
As noted above, obtaining a patent grants an inventor the legal remedy of suing anyone who may misappropriate their patent, whether through the unauthorized manufacture, use, sale, or importation of their patent, for patent infringement. The United State Patent and Trademark Officer (“USPTO”) is the agency that is responsible for issuing patents to inventors for their inventions, and for maintaining a searchable database of all patents.
The USPTO was formed to protect the rights of inventors, and, thus, offers several ways an inventor may protect their inventions, even before they are ready to apply for a patent. An inventor may protect their invention, before obtaining a patent through:
- Obtaining a Provisional Patent: Obtaining a patent is an expensive process, but the USPTO offers a much less expensive option through the issuing of provisional patents. Provisional patents protect an inventor’s invention for a period of 12 months, after which if you file a regular patent application, you can retain the filing date of the provisional patent application; or
- Filing a Description with the USPTO: Another option the USPTO provides inventors is the disclosure document program. The USPTO allows you to file a description of your invention with the USPTO as proof that you were the first to conceive the idea, which allows you to have proof that you were the first to conceive the invention.
It is important to note, that neither of the two aforementioned options offer the full scope of protection that a patent provides. However, both options are useful for persons who want to protect their inventions in the period of time between conceiving the invention and patenting it. There are other options if you are not in the process of obtaining a patent, such as using nondisclosure agreements or maintaining the invention as a trade secret, which will protect your work.
How Do I Protect My Invention Without a Patent?
As noted above, there are other options available for an inventor to protect their inventions, while still trying to market their invention. One such method of protecting an invention is through the use of a non-disclosure agreement (“NDA”).
A non-disclosure agreement , also known as a confidentiality agreement, is an effective way of protecting your invention while still being able to market your invention to investors, manufacturers, or distributors. A non-disclosure agreement is essentially a document that you have another party sign, before you disclose your invention to them, which legally binds them to keep the information you share with them confidential.
Non-disclosure agreements typically contain the following:
- Definitions of Confidential Information: The NDA should provide a full description of what is and what is not confidential information;
- Obligation Section: NDAs will also contain an obligation section that spells out the obligations of each party. For example, the NDA should state that you cannot breach the agreement, you cannot persuade others to breach the agreement, and that you cannot help others access the information; and
- Time Period: NDAs also contain an outlined time period, such as ten years, that the person receiving the information should keep it confidential.
If you fully execute a non-disclosure agreement, and the other party then later discloses your secret without your explicit authorization, they will be deemed to have breached the nondisclosure agreement and be liable for damages.
Another way of protecting the confidentiality of your invention is through trade secret law. A trade secret is simply the information that gives a business a competitive edge over another business. The information can be a formula, pattern, compilation, program, device, method, technique, or process that is not known to the public, is economically beneficial to the holder, and the information holder makes efforts to maintain its secrecy. The Coca-Cola Company and KFC’s secret formula recipe are examples of trade secrets.
Trade secrets are maintained through secrecy,thus, they should be protected through the use of non-disclosure agreements or non-compete agreements (agreements that prevent ex-employees from disclosing trade secrets to competitors). You should clearly convey your intent to maintain the confidentiality of your invention if you want to protect your invention through trade secret law. If you maintain reasonable policies and procedures for the confidential use and disclosure of your invention, and someone steals the information, you may be able to sue them for trade secret misappropriation.
Should I Hire an Attorney for Help Protecting an Invention?
As can be seen, there are numerous ways in which an inventor may be able to protect their invention, besides obtaining a patent or copyright. Therefore, if you have a valuable invention and are concerned about protecting it, you should consider consulting with a knowledgeable and well qualified intellectual property attorney in your area.
An experienced intellectual property lawyer will be able to discuss what protections are available for you, as well as what precautions you should take when sharing information about your invention.