Should You Worry About Your Intellectual Property If It Doesn’t Have a Patent?

One of the biggest concerns inventors and other innovators have about pitching their ideas is getting their intellectual property stolen. This isn’t a baseless fear. Theft of intellectual property including trade secrets is common, and without a patent you probably have a trade secret. Fortunately, there are some steps you can take to protect yourself.

Before you collaborate, negotiate or otherwise share information with any business or person, do your research.

If the entity in question is a person, did you actually check their references? Did you engage a company to do a formal background check on them? Are you aware of their credit and financial situation? If you’re dealing with a business, do they have any record of complaints or legal cases against them? How long have they been in business? What businesses did their owners run before, and do they run any others now? Asking these questions and finding the answers can’t head off all trouble at the pass, but it can eliminate the most shady characters from the equation.

Use the right legal tools.

In order to protect your intellectual property without a patent, the right kinds of legal agreements, carefully crafted to meet your specific needs in each instance, are crucial:

  • Non-disclosure agreements (NDAs) – Anytime you need to share secret information with someone in order to work with them, sign a non-disclosure agreement. This kind of agreement makes confidentiality a condition of the relationship. There are two kinds of NDAs: mutual and unilateral. Obviously the mutual agreement means that both parties agree, no one shares information with anyone else. However, NDAs can also be unilateral, and since you are disclosing your secret to someone else, you can enter the NDA yourself as you share. Avoid end dates; clearly you are trying to maximize your protection and limit the other party’s ability to share the information.
  • Non-compete agreements (NCAs) – Whenever you need to hire someone to work with you using your ideas, information or processes, a non-compete agreement should be required. NCAs set forth an established radius and timeframe (usually both during employment and immediately afterward for a period of time) within which the employee cannot start a competing business.
  • Work-for-hire agreements – Chances are good that you may have to employ people to help you develop and produce your invention. If you do, work-for-hire agreements ensure that you continue to own all rights to the idea and that you also own any and all improvements made to it. This means that they are simply working for you as a contractor, and you own anything they create. This is important; you don’t want every person that works on the product at some point claiming co-inventorship status.

Get to know the competition.

Sometimes your enemies are actually allies; if you can make competitors contractors or suppliers for part of your idea they may be happy with that part of the market. And, when this isn’t enough, by being very familiar with your competition you still have a better idea of what their resources are and how to protect yourself from them.

Use other intellectual property protections.

There’s more to Intellectual property protection than patents:

    • Trade secrets – If your information is secret, depends on its secrecy for its value and you are trying to protect it, it probably qualifies as a trade secret. Although theft of trade secrets is generally difficult to prove and protections are weaker than those for patents, you can seek protection for trade secrets using various legal theories including breach of confidence, breach of contract, and industrial espionage.
    • Trademark – It is only a few hundred dollars to apply for a trademark and it’s easy; a trademark will also help you establish ownership of a specific logo, phrase or other simple idea that connotes your business. Trademarks are protected because they become synonymous with your unique product, so if you have a registered trademark you can more easily make the argument that your idea or invention is synonymous with your product and brand.
    • Patent pending application (PPA) – If you only need to buy some time, say to pitch your invention idea, you can always file a PPA. Filing the PPA costs around $100, and while the application is processed your idea is protected for as much as one year while you label your idea “patent pending.”

About the author

Karla Lant

Karla Lant is an Adjunct Professor for Northern Arizona University and a freelance writer. A former trial attorney in major felony criminal defense, her areas of legal expertise include forensic science, intellectual property, biotechnology, and constitutional law. Lant also focuses on tech trends, science and education in her work.

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