Is a patent really necessary?
Having a patent isn’t always essential in every situation. There are instances where you might choose not to pursue a patent. Take, for example, a recipe: it can be protected by a patent, but it might be better safeguarded as a trade secret. Coca-Cola, for instance, keeps its formula as a closely guarded trade secret. Trade secret protection can last a lifetime, unlike patents that only remain valid for 20 years from the date of filing. So, if your invention is better protected as a trade secret, it’s advisable to forgo a patent. This way, you can avoid the high costs associated with patent protection altogether.
Check out my article on patentability of 32 different things. It’ll help you understand what can be patented and whether exploring other types of intellectual property might be more suitable for your various inventions and ideas.
How long can you postpone patent costs?
If you do need a patent to safeguard your invention, how long can you wait before you must invest in patent protection? In other words, what is the latest date on which you can file for patent protection?
Legally, you can delay paying for patent protection for up to one year after you begin marketing your invention. This means you have one year from the first date of printed publication, first offer for sale, or first public demonstration of your invention. However, ideally, it’s best to file the patent application before engaging in any marketing activities. In fact, it’s advisable to submit the patent application even earlier.
Have a look at my article on why filing a patent application before marketing your invention is crucial. Remember, file the patent application before discussing your invention with others.
Now, let’s explore how you can use contracts and trade secrets as alternatives to protect your invention, allowing you to delay or altogether avoid the high costs associated with a patent.
How to leverage contracts for protection?
During the product development stage—where you likely find yourself if you’re reading this article—contracts can be powerful tools for safeguarding your invention. These contracts protect you against potential threats from investors, co-inventors, independent contractors, and manufacturers. When sharing your idea during the development phase, it’s essential to have a contract in place to prevent idea theft.
When it comes to investors, it’s preferable to have a patent application filed before you present your pitch. However, if you’re lacking the funds to cover patent costs, that might not be an option. In that case, you’ll have no choice but to postpone patent expenses until after an investor decides to support your idea.
With co-inventors, it’s advisable to establish a joint exploitation agreement that clearly outlines the limitations each co-inventor has regarding the invention. Alternatively, you can assign the invention to a corporation and distribute shares among the co-inventors.
Employees should sign a nondisclosure agreement and have a duty to assign inventions and copyrights to you if they were employed to create or invent.
When working with manufacturers, ensure they sign a non-disclosure agreement and commit to using the tools they create exclusively for your project. Remember, those tools belong to you.
These examples share a common thread—contracts are only effective when dealing with individuals you have a personal relationship with, and they must agree to enter into the contract. If you lack a relationship with the parties involved or they refuse to sign the contract, it becomes challenging to protect your invention using contracts. Some companies you might approach with your ideas won’t sign a non-disclosure agreement. They may insist on filing a patent application, claiming they won’t hold your information in confidence.
How to treat your invention as a trade secret?
Trade secrets offer protection for confidential information. However, this protection generally only lasts until you begin marketing your invention. Once your invention is out in the open, trade secret protection no longer applies. It’s important to note that trade secret protection only guards against individuals who try to deceive you and steal your idea. If someone independently comes up with the same idea, your trade secret protection won’t help you. They conceived the idea on their own, so there’s no basis for accusing them of misappropriating your trade secret.
To obtain trade secret protection for your invention or idea, you don’t need to register it. Instead, you must treat it as a trade secret. Obtaining non-disclosure agreements from those you intend to share your idea with is a reasonable step to take if your invention or idea is being kept as a trade secret.
According to the law, if you treat information as a trade secret, it is considered one. Conversely, if you don’t treat it as such, it won’t be regarded as a trade secret. This may seem like a self-fulfilling prophecy, and in some ways, it is. To secure trade secret protection, it’s important to have non-disclosure agreements signed by those you share your idea with, even before filing a patent application. Failure to obtain signed non-disclosure agreements may jeopardize the status of your invention as a trade secret.
Trade secret protection can be employed to safeguard your invention before applying for a patent. By treating your invention as confidential and as a trade secret, you provide some level of protection.
Even after filing a patent application, it’s a good practice to continue treating your invention as a trade secret until you launch your idea. By doing so and having non-disclosure agreements in place, you add an extra layer of protection.
To enhance protection, consider obtaining patent rights to guard against individuals who might independently come up with the same idea. Patents also protect against those who hear your idea and attempt to file an improvement patent application based on the information you shared.
Can design patents safeguard your invention?
Throughout this article, we’ve discussed alternatives to utility patents due to their high costs. However, design patents come with lower costs. It’s important to note that design and utility patents protect different aspects of your invention. Design patents safeguard the appearance of a product, while utility patents protect its functionality. Design patents cannot be used to protect functional features, and utility patents cannot be used to protect the visual look of a product.
Can copyright or trademark protect your invention?
No, copyrights and trademarks protect different types of intellectual property. Copyrights cover artistic designs, while trademarks protect brands. Patents, on the other hand, specifically protect inventions. For more information, read my article on “Four Types of Intellectual Property: How to Protect Your Idea and Utilize Them.”
That’s it for today’s article! If you’re looking for more information or assistance, visit Garrity Traina for expert advice and guidance on intellectual property protection.