What is the name of your state? I live in FL
I hear all sorts of rumors and gossip on how to protect an idea, none of which I will divulge here because it's all useless and I want to put an end to all the second guessing and see if there is a willing and nice Patent Lawyer or expert out there who can definitely say how exactly can one "protect" their idea legally and for how long.
I've heard all the stories, now really how can we really protect our ideas so that eventually we can seek patents if they are viable?
Thanks,
Steve Gara
The discussion that follows is limited to potentially patentable ideas -- it does not cover ideas for a new TV show or anything like that, which follow different rules (and generally aren't any easier to protect).
The only way to really protect an idea -- other than keeping it secret -- is to obtain a patent. There really isn't any other way to do it. None of the other IP rights -- copyright and trademark -- protect the underlying ideas, only expressions of the idea (in the case of copyright) or only that part used to identify a product or service in commerce (trademark).
You can divulge a secret to a company under a nondisclosure agreement (an NDA), but this doesn't protect the idea -- it can still be stolen -- it just creates a contractual remedy if the idea is stolen. And it certainly doesn't protect you if someone else comes up with the same idea (or nearly the same idea) on their own -- only a patent can do that.
A patent is valid for 20 years from the filing date of the patent (or earliest effective filing date if the particular patent is a continuation or CIP or divisional patent). A secret can be kept secret forever, as long as it can be kept secret.
Note that there are some protections for secrets -- there are some remedies if you have a "trade secret" and it gets stolen -- but these remedies can be pretty limited in practice, and again, don't protect you if someone else comes up with the same idea independently. These only protect against theft of the secret. Plus, not everything that is secret can qualify for trade secret protection anyway.
Generally, if one has an idea, and wants to potentially sell or license the idea, there are three routes.
1. File a patent application before any disclosure to anyone else. This provides the best protections (longest patent term, etc.), but requires that the patent application be drafted and filed up front, before you learn if anyone is interested in your idea.
2. File a provisional patent application before an disclosure. This provides just about the same amount of protection as 1, but will have a shorter patent term (because the provisional time is part of the 20 year period), and generally costs nearly as much as 1 (filing fees are cheaper, but drafting fees -- if you want a provisional that can be turned into a good patent later -- are nearly the same as for a nonprovisional application).
3. Disclose only under an NDA, then file for a patent when you are ready. This requires the east cost up front (only a lawyer to draft the NDA), but has a few potential problems. First, like I said before, the NDA doesn't create any rights or protections for the idea, it only creates a contractual remedy in the event of theft of the idea. Second, if the party subject to an NDA does breach, there are situations that can arise where you can lose the opportunity to patent your idea (based o disclosure and timing and the like). Finally, many entities will not just blindly sign an NDA -- many will not sign at al, and if they do, they may want to either have your sign THEIR NDA, or revise YOUR NDA -- and you will probably want a lawyer to guide you through this, which can cost some money.
At least, these are the methods I can come up with off of the top of my head.
