How do I protect my new product idea?
Once you have a new product idea, you probably start wondering, “How can I make sure this idea stays mine?” You also may be a little hesitant to share the idea with others for fear of someone running off with your great idea and reproducing it themselves. While the likelihood of that actually happening is probably pretty low, it certainly can happen. Fortunately, protecting your idea is a pretty simple process.
There are three easy ways to protect a product idea:
Non-Disclosure / Confidentiality Agreement
Each of these provide different levels of protection but don’t worry, we’ll provide a brief outline of each one below.
Before we go into the different ways to protect your product idea, it’s important to be aware of what it is about your idea that makes it special. What’s the secret sauce? It’s critical for you to have a good understanding of what makes it special so you and your team are diligent with keeping that information controlled and within the group.
The first level of secrecy is a trade secret. The phrase ‘trade secret’ is generally only used when discussing a company’s secrets and is just a formal way of saying it’s a plain old fashion secret. Since trade secrets are really just secrets, they can technically be maintained with or without contractual obligations (although having a contractual obligation is a really good idea when it comes to trade secrets). The most famous trade secret is probably The Coca-Cola Company’s formula for their carbonated soft-drink. Coca-Cola never sought out a patent on their formula and decided to keep the information tightly controlled within their company. That can work for products that are difficult to reverse engineer but with technology today, most products can be relatively easily reverse engineered to nearly identical specifications. The next levels up on the protection scale may be better options for product ideas.
The second level of protection is a Non-Disclosure Agreement, also interchangeably called a Confidentiality Agreement. NDA’s or CA’s for short, these agreements lay out terms for the required level of secrecy over a period of time for particular information specified by the Discloser (the party with the secret information) to the Disclosee (the receiving party of the secret information). An intellectual property attorney (a patent attorney) can customize and provide an NDA for you for a fee and most businesses you’ll interact with will have their own they can offer as well (have your attorney review any NDA before signing it and especially before making any disclosure of confidential information).
If you find yourself needing to discuss your new product ideas with someone (whether a person or a business) you should consider how much information about your product idea you’re willing to be forthcoming with before you need to introduce contractual secrecy obligations. That may be zero information, and that’s alright. Some new product ideas are completely new and create an entirely new product category and as a result are usually harder to describe to people without getting into the confidential details. Other products are improvements or derivations of existing products so those are easier to discuss casually without the details of what makes it so much better than the rest. It’s easy to say I’m creating a lawn mower with a really unique feature improvement and leave it at that, but it’s a lot harder to talk about a new product that is an entirely different way to cut grass without getting into any of the specifics. It’s important to know when you need to stop and ask the person to sign a confidentiality agreement before proceeding. Your attorney can help you with determining this as well.
The next level of protection is a patent. Patents are legal rights of ownership of intellectual property (i.e. the ownership of ideas) and they come in three forms: Utility Patents, Design Patents, & Plant Patents (learn more about patents in our article “What is a Patent?”). In any of the three types of patents (utility, design, or plant), you’ll first apply for a patent by spelling out all of the details of the intellectual property in a patent application with the U.S. Patent & Trademark Office. Then once the patent is granted and published for the world to know what it is and that you own it, you’ll have 20 years of exclusive ownership from the application date (not the date the patent was granted). Your patent will give you the ability to stop others from making, using, or selling your product idea during that time, great right?
If you paid really close attention you may have caught-on to a small catch with a patent. First, your patent application has all of the details of the idea spelled out in black and white, and it’s public information. Second, after the 20 year mark, it’s fair game to everyone. So the upside of going through the patent process is 20 years of exclusive ownership rights, but the downside is you’ll effectively tell the world how to make your product so once the 20 years is up, they can do just that and you have no more say about it. This is why Coca-Cola never got a patent, they kept the formula a trade secret so no one knows exactly how to reproduce it, although many have tried.
As we’ve said throughout this article, speak with your patent attorney to discuss the best option for your unique situation. A quick conversation with them will help alleviate your concerns about making the right decisions with respect to your intellectual property.
Trade secrets, NDA’s, & patents are great ways to protect your invention or new product idea and keep it yours from its inception, through your product development venture, and for years to come. To review, trade secrets are just formal secrets within a company, NDA’s are secrecy contracts, and patents create legal ownership of intellectual property for a period of 20 years. Deciding what’s best for you starts with a little information and some common sense, but ultimately we feel getting some expert legal advice is without a doubt the way to go.
As we’re sure you’ve found, there isn’t a lot of quality information out there for inventors so if you liked this article and found it informative, please share it with your like-minded, creative, inventive friends, coworkers and family. If you need any product development assistance, feel free to Contacts Us by emailing us at firstname.lastname@example.org, filling out the simplified contact form below, or giving us a call at 407-721-4390. We’re always happy to help inventors through all the stages of product development!
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