Protecting Ideas
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Protecting Ideas
Unfortunately, despite what you may have heard, there is no effective way to protect an idea through intellectual property law. Copyright protects expression and patent law protects inventions, and neither protect ideas. In both cases the idea is the first critical step, but without some identifiable embodiment of the idea there can be no intellectual property protection. That does not mean that you should give up when you only have an idea, but it does mean that you ought to proceed to flush out your idea to the point where it is concrete enough to be more than what the law would call a “mere idea.” The moral of the story is that ideas alone cannot be protected, so you need to think in terms of invention.
If you are stuck at the idea phase you are not alone. Many people will have great ideas, but what separates those who can turn their ideas into money from those who cannot is a strategy to define the idea enough so that it can become an asset that can be protected. If you are having difficulty moving out of the idea phase and into the invention phase take a look at Moving From Idea to Patent and About the Invention Process. These articles will provide some insights and help you formulate a plan for reaching the invention stage, which is where you want to be because in order to commercialize and monetize your ideas. You can also do a patent search yourself in order to get some additional information that you can use to help solidify your ideas and turn them into inventions.
With respect to copyrights, the best thing you can do is simply start writing, drafting or otherwise creating your work. A copyright exists immediately upon the original creation and fixation thereof. You do not need to do anything special to claim a copyright… you can immediately place the c in a circle and call the work copyrighted. Nevertheless, in order to sue for infringement you will need to have a federally registered copyright. The filing fee is only $45, so applying for a copyright should be done as a matter of course. For more information on applying for a copyright visit Copyright Applications.
With respect to patents, many people will have great ideas, but will not be able to put that idea into a package appropriate for a patent because there is no invention, only a concept. To be sure, the idea is the all critical first step in the invention process. After you come up with the idea or concept you now need to put together a game plan on how to carry that idea through. The idea and game plan together form what the law calls conception. Conception is an important concept in patent law because in the United States it is the first person to invent that will ultimately receive the exclusive rights on an invention. That being said, it is critical that once you conceive (idea + game plan) you will need to be diligent and not let any grass grow under your feet as you move forward toward defining and experimenting with your invention.
The myth that an idea can be protected frequently stems from what many call the “poor man’s copyright.” With the poor man’s copyright you simply mail your work to yourself and that is believed to somehow protect the idea. It is absolutely critical for everyone to understand that mailing your idea to yourself will do absolutely nothing to give you protection. If you do have original expression that is fixed in a tangible medium of expression it is copyrighted immediately, but not federally registered. All that mailing your work to yourself will prove is that you had it as of a certain date, and that is only assuming there is a postmark on the envelope (which does not always happen) and the envelope is not opened. It provides no rights whatsoever.
Similarly, the myth that mailing your idea or invention to yourself somehow protects the idea or invention in the form of some kind of poor man’s patent. Many believe that if there is a poor man’s copyright there must be a poor man’s patent. As discussed above, there is no poor man’s copyright and, likewise, there is no poor man’s patent. Mailing your invention to yourself creates absolutely no exclusive rights. To the contrary, mailing the invention to yourself and then doing nothing with it could be used against you later on to demonstrate lack of diligence, abandonment or even suppression and concealment, none of which would be good things! The one thing that mailing a description of your invention can do is demonstrate that as of the date of the postmark you were in possession of whatever is included in the envelope. Given that the US patent system is currently a first to invent system, such a mailing could be useful evidence, provided of course the envelope does have a postmark and provided the envelope is not opened. Do not overestimate the importance of mailing your invention to yourself. It is not bad to do, and in fact can be helpful in a limited number of cases, although cases are few and far between where this evidence is required. The main point is to remember, however, is that no exclusive rights attach to or will be derived from such a mailing. If you want a low cost solution to starting the patent process you should really consider a provisional patent application.
But there must be a way to protect my idea somehow, right? Well, the answer is yes. If you can get someone to sign a Confidentiality Agreement then they will be promising not to use your idea without your permission. This is not a form of intellectual property though. You are extracting a promise and if the person breaks that promise you can sue them for breach of contract. Getting folks to enter into such agreements is sometimes quite difficult. While manufacturers and suppliers are normally familiar with and willing to sign, those who you approach about funding (i.e., venture capitalists and angel investors) are likely to reject the notion of signing. Similarly, if you approach a company in hopes that they might be interested in acquiring or licensing your invention, they are almost certainly going to refuse to sign a confidentiality agreement. This is because signing a contract that says they need to keep your idea confidential only opens them up to liability. There are enough people around who just tell their ideas for free, so why sign an agreement? That is perhaps sad, but the truth.
Still further, investors and companies that might otherwise be interested in reviewing your invention are likely to be uninterested at least until you have some type of patent application pending, whether it is a provisional patent application or a nonprovisional patent application. This is true because once you have a patent application pending you have defined your invention, you are also moving forward in a prudent manner, and because those who do not file patent applications and just submit ideas are far more likely to wrongfully claim that an investor or company has stolen their idea.
Nevertheless, if you do not have some type of patent protection, and you cannot get a Confidentiality Agreement, the truth is that if you tell them your idea they are free to use the idea. For this reason, before shopping your ideas around it is always prudent to refine the ideas into a working invention. Then file some kind of patent application on the invention. By having a patent pending you have secured some rights, and you have an asset, even though it will not mature into an exclusive right until a patent is ultimately issued. With the patent pending you can decide to disclose even without a confidentiality agreement and still rest assured that what you have described in the pending application is yours. Therefore, if you cannot get an interested party to sign a confidentiality agreement and you still want to disclose, perhaps because they are a major company, disclose only after having some kind of patent application on file.
Good luck!
from:
http://www.ipwatchdog.com/inventing/patent-ideas/
Written by Gene Quinn
Patent Attorney & IPWatchdog Founder
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