Patent Confidentiality: Everything You Need to Know
Patent confidentiality means that you can reveal your invention to a third party without worry that they will steal your idea.3 min read
2. Patent Filings and Confidentiality Agreements
Patent confidentiality means that you can reveal your invention to a third party without worry that they will steal your idea or reveal information about your invention to the public. You can protect information about your invention by using a confidentiality agreement.
Patents and Confidentiality Agreements
If you are an inventor and want to tell investors and other interested parties about your idea, using a confidentiality agreement is a good solution. With a confidentiality agreement, you can protect your idea before your patent has been granted.
While it's true that a confidentiality agreement can't actually stop someone from stealing your idea, it will give you legal options if your invention is stolen. For example, if the person who signed the confidentiality agreement steals your idea, you may be able to file a lawsuit against them.
When drafting your agreement, include the following information:
- What information will be considered confidential.
- Responsibilities of the parties in the agreement.
- How long the agreement will last.
- Whether third parties will have any rights to the information.
- How to resolve disputes related to the agreement.
Inventors should insist on a confidentiality agreement in the following situations:
- Researching the market for an invention.
- Licensing an invention.
- Requesting feedback about an invention or trying to find a partner.
Every year, venture capitalists consider countless inventions and products for potential investments. Signing and keeping track of a confidentiality agreement for every product they consider would be very expensive and time-consuming for most venture capitalists. Because complying with confidentiality agreements is impractical for venture capitalists, most of these investors will not sign one of these contracts.
Fortunately, most experienced venture capitalists are not interested in stealing ideas, particularly ones that aren't fully formed. Investors don't want to spend money developing inventions. Instead, their goal is putting their money into inventions that are fully realized and nearly ready to hit the market.
Other parties, however, may agree to a confidentiality contract, including:
- Market Researchers
- Prospective Partners
Remember: confidentiality agreements typically only protect the inventor. Generally, your agreement should be no longer than two pages. You'll need to include broad language about your invention, as well as specific details about the length of the contract and what information it protects.
Patent Filings and Confidentiality Agreements
How you reveal information about your invention will determine if acquiring a patent will be possible. For example, if you publicly use, sell, or disclose your invention a year before filing a patent application and then fail to file an application, you cannot patent your invention. Essentially, after public disclosure occurs, you will have one year to submit.
You should be very careful about telling other people about your idea without patent protections in place. Publicly revealing any information about your idea can put your ability to protect your invention at risk.
Publicly revealing your invention can occur in several different ways:
- Selling your idea or making an offer to sell your idea.
- Using your idea in a public space, even if no one sees the use.
- Showing your idea in a public space, even if no other person sees the display.
- Revealing information about your invention in public. This can include publishing information about your idea in a blog or social media post, or giving an interview about your idea.
However, in certain circumstances, experimental use of an invention does not count as publicly revealing your idea. These circumstances include:
- Telling a potential investor or manufacturer about your idea after they have signed a confidentiality agreement.
- Revealing information about your invention to a patent attorney while receiving legal guidance.
- Using your invention in secret in a location where you have an expectation of privacy.
- Keeping your idea as a trade secret and taking steps to maintain this secret.
Countries other than the United States observe the "absolute novelty" rule. Basically, this means that in these countries you must have filed a patent application before using your invention in public. As an inventor, you should never tell anyone about your invention if you're not sure you can trust them to keep the information private. If you're not sure if you can trust a person with your invention, you should insist that they sign a confidentiality agreement.
If you need help with patent confidentiality, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.