How to Protect Your Idea

• Protecting your idea with patents, and
• Protecting your idea in conversation.

It pays to be in the know in both of these areas, not just one or the other. Do not make the mistake (as so many do) of using a “poor man’s patent” and then assuming you can run your mouth to everyone and his mother about your idea. On the other hand, real patents are not 100% failsafe, either. If a big competitor gets wind of your idea, they may still create it and simply invite you to sue them. They have the resources; you probably do not. However, neither of these common obstacles have to befall you. We will begin with how to protect your idea with intellectual property, and then segue into protecting it in casual conversation.

Protecting Your Idea With Patents

Before we begin, we must dispel a very naive and prevalent myth. Of all the misbegotten notions flying around about patents, this is by far the most widespread.

In recent years, there has been increased fixation on “protecting ideas” by way of intellectual property law. Patents in particular have been seen as the premier form of doing this. In fact, ideas as such cannot be protected by intellectual property law. At least, not in the sense of keeping someone else from capitalizing on them.

This may come as a surprise to would-be inventors who are familiar with those TV advertisements promising the ability to patent an idea. The truth is, this is legally incorrect and in fact, impossible. This is why invention submission companies who make this promise cannot help you. They are simply in the business of collecting fees from people who believe that they can.

Patents Protect Inventions, Not “Ideas”

However, it is not all bleak. The truth is that patents protect inventions, not ideas. Instead, what you must do if you want protection of your intellectual property is create something based on your idea.

This is what separates an idea from an invention. It is something tangible, brought into existence as a manifestation of an idea. This is the only thing that patents or intellectual property law in general can protect for you.

The reason for this is simple. Think about it; if someone could merely dream up an idea and sit on it, who would this punish and who would it reward? Creators would be forced to delay their progress and give their money to people whose involvement with an idea began and ended with thinking of it . Innovation, under such a policy, could not thrive over the long term.

Instead, the US Patent and Trademark Office extends legal protection to only those who do something with their ideas.

What does this mean for you, the inventor? It means that if you want patent protection, you need to create a proof of concept, or a prototype, of your idea to include in your patent application.

There is NO such thing as a “poor man’s patent.”

It is at this realization of the work that lie ahead that some inventors leap to an easier-sounding alternative: the much-mythologized “poor man’s patent.” This is another dangerous intellectual property myth that nevertheless holds appeal to laymen, so let us debunk it before going any further.

Stop me if you’ve heard this one. “Hey man! Turns out we can skip all that paperwork and waiting and huge cost! My buddy told me all we gotta do is mail a bunch of notes and sketches to ourselves and if anyone tries to rip our idea, we just bring the mail to court!”

This is known as the “poor man’s patent” and it to put it bluntly, it isn’t. All this does is prove that you had the idea at a certain date, and even that can only be proven if there is a federal postmark on the envelope (which does not always happen) and the envelope is unopened. In terms of protecting your idea, it is absolutely worthless.

Inventor’s Logbook

So if mailing yourself your work isn’t sufficient documentation, what is? The answer is something called a logbook. A logbook is essentially an inventor’s journal. It is where the inventor keeps track of his progress and dates each step. A logbook proves that you came up with your idea at a certain date and displayed due diligence in pursuing it. However, there are some definite standards you should adhere to when keeping a logbook. This will help ensure that your documentation looks legitimate to patent examiners.

You should start your logbook as soon as you think of an idea. In it, you want to write down detailed records of key concepts, test results, and anything else having to do with the creation of your idea. Also, do NOT keep your logbook in a looseleaf paper. Instead, opt for a bound notebook. The US Patent and Trademark Office trust these because they make it very difficult to conceal the fact that pages were added or taken out.

So, to conclude: you cannot patent an idea, but you can patent something you create from it. And far from simply mailing yourself a few papers, you should keep extensive, detailed logs of all your progress. This is what you should begin doing right away if you want to protect your idea from competitors and keep it out of the wrong hands. Once you have done this, you can apply for a provisional patent application with all your ducks in a row.

Now that you have availed yourself of a fact-based view of protecting ideas through patents, it is time to examine the other crucial facet of idea protection: conversations with others.

Protecting Your Idea in Conversation

In invention, as in so many other disciplines, the best defense is a good offense. The faster you can create a working, tangible example of your idea, the sooner you can apply for patent pending status and market it safely.

But even if you dot all the I’s, cross all the T’s, and make sure every intellectual property duck is in its row, it takes a considerable amount of time, money, and planning. And in the meantime, you do need to protect your idea: from competitors or anyone without a genuine, pressing need to know about it. To avoid any confusion, we have formulated four hard-and-fast rules relating to communication of your idea. Read them over a few times, know them inside and out, make them your best friend and must trusted ally.

When and with whom should you discuss invention ideas?

1. Once you have obtained a patent or patent pending status
2. When you need to hire or partner with someone to create your idea
3. When the person with whom you are speaking is bound by a non-disclosure agreement
4. When you are working with a patent attorney on your patent application

If none of these four conditions are met, there is a good chance that discussing your idea may sabotage its prospects for success. No matter what the excuse or rationalization, idea-related communication that does not fall along these lines can be dangerous.

Unfortunately, many inventors fall into the trap of informal conversations about their inventions with outsiders. Before we outline the correct methods of discussing invention ideas, it is helpful to debunk some of the most common excuses for discussing them inappropriately.

“If we talk about the new technology on our website, journalists will notice and talk about us!”

It sounds good on theory, but rarely works out this way. In technology, there is a phrase for discussing yet-to-be-created software or hardware: vaporware. The problem with discussing vaporware on your website or in promotional materials is that your competitors can see just as well as journalists or potential customers can. All it takes is one rival to sense that you have not made progress yet and use their superior resources to create your idea before you can.

Do NOT discuss new inventions or technology — on your website or anywhere else — until you have patent pending, or at least a prototype. Failing to heed this warning puts you at risk of prematurely opening the “market window”, which we discuss a bit later in this guide.

“I just wanna tell my buddies, they’re the LAST people I have to worry about!”

An old cliché comes to mind: “people talk.” This self-evident truth haunts inventors far more than it should. In the rush of excitement, many of them feel compelled to share the inner workings of their ideas with friends or relatives. The problem here is that every person you tell mathematically increases the odds of your idea leaking into the wrong hands. Your friends did not come up with this idea and are not staking a serious part of their lives on it. Why should they be as guarded and defensive about it as you are?

For this reason, it is best not to tell your friends about your ideas until they are protected.

Warning: Ignoring these precautions risks opening the “market window” for your product prematurely!

What is the market window, you ask? Every product has a market window, which generally lasts around five years. The market window refers to the demand and supply of the product, the economic realities of how consumers feel about it and how many people wish to buy it. You do not want to open this window until the product is finished and for sale. However, the market window CAN be opened prematurely, if one is not careful. It opens as soon as consumers hear about the product. This is a serious risk.

If you make a lot of noise about your idea before it is ready, and the public likes what it hears, other manufacturers will race to be first to market. And since the first or second manufacturer to bring something to market generally gets most of the sales, this puts you in a huge hole. The bottom line? If you prematurely open up marketplace demand for your product, you probably wont be able to capture any significant percentage of the market share. After all your hard work, this would be a disaster!

So, what precautions can I take when I HAVE to discuss my idea to someone?

Now that you know when not to discuss your idea, you need to know how and when it is safe to discuss it. You may have noticed number 3 on the checklist, regarding non-disclosure agreements. In general, you want people to sign one if you intend on revealing significant portions of your idea to them.

What is a Non Disclosure agreement?

So what is a non-disclosure agreement? They are also known as confidentiality agreements and NDA, for short. In short, it is a contract between multiple parties stating that what is discussed between them must legally remain a secret. They can also be customized to meet your specific needs. For example, your NDA can dictate that only the person you are talking to is bound to secrecy, while you are not, or vice versa. The idea is that if an NDA is broken, there are legal consequences and this helps protect your idea from being stolen.

Most attorneys can draft a non-disclosure agreement quickly and inexpensively to meet your needs. Who should you ask to sign a non-disclosure agreement?

• Any personnel you hire
• Family members you shouldn’t have told, but did
• Lawyers you work with (if they will agree to it)

However, it is important that you do not view these agreements as a panacea. It is possible for someone who signs an NDA to break it and not get caught. People who are hell-bent on abusing something will always find a way to do it. While this is not common, the fact that it is possible should indicate to you that you still need to be selective in who you discuss your ideas with.

Many Companies Won’t Sign NDA’s

It is also worth noting that if you are trying to sell your idea to a company, they most likely will not sign a non-disclosure agreement. There are standard business reasons for this, namely that the company might already be or might in the future work on something similar in their research and development labs. If they signed an agreement with you, this would make it difficult for them to pursue similar ideas in the future and few companies are willing to put themselves at such risk.

However, there is no harm in asking, and you should seek all the protection you can. If the company in question does sign the NDA (say, a smaller company without R&D labs), you are that much better off and therefore, you should always at least ask and see what they say.

Most importantly, you should pay heed in all idea-related encounters to the checklist at the beginning of this article. If you follow those simple guidelines, you will greatly increase your odds of getting your idea to critical mass safely.

Thank you for reading this article on how to protect your idea. If you would like to contact us regarding our patent services, please call us at 330-299-0757.