Recently I came across an affidavit of Kenneth R. Glaser, a patent attorney and partner in the law firm of Gardere Wynne Sewell LLP. In fact, this affidavit was submitted to support Invent Help’s motion for preliminary injunction against me. There are many things in the affidavit that I believe are provably false, and intend to prove to be false during litigation. The one statement I would like to focus on today is Attorney Glaser’s comments about confidentiality agreements being more effective than patents. Apparently it is his experience that companies will enter into confidentiality agreements to accept ideas and inventions that are submitted for consideration. In the affidavit he states:
Indeed, a more effective, and much more expeditious, form of protection with respect to those to who the inventor’s products ideas or inventions are submitted is through the use of the well known written confidentiality agreement, in which the company to which the product idea or invention is to be submitted agrees, in advance, not to use or disclose the submitted invention. My experience has been that companies, including sophisticated companies, often enter into agreements of this type so long as what is excluded from the confidentiality obligations is the knowledge already possessed by the company prior to the submission… The use of these confidentiality agreements, relying upon contractual obligations and state law, thus gives the inventor immediate protection against misappropriation by those to whom the invention is submitted for evaluation.
Attorney Glaser’s “experience” is very different than my own, and very different when compared with all those I know in the industry. I have to wonder exactly where he is getting his information. It might be easy enough to chalk this up to a professional disagreement, you know diverging opinions, but it seems that what he says can be easily contradicted if you just spend a little time searching the Web, which I did the other day. So lets take a look at what the submission polices are for numerous companies, shall we?
As you review the statements below, all of which were publicly available on the Internet when I found them, I think what you will find is that those companies you would most like to review your ideas and inventions are the companies that are not going to do so on a confidential basis. Many companies require an issued patent, or at least a pending patent application. Over and over again they recommend that you at least file a patent application prior to submitting in order to preserve your rights, and recommend that you contact a patent attorney.
I am sure there are many others, so if you know of a company that has a similar policy please let me know.
3M — screenshot taken 1/28/2010
New product ideas associated with pending patent applications, provisional patent applications, and/or patent applications that are otherwise in prosecution will not be accepted in this process. PLEASE UNDERSTAND THAT 3M WILL ONLY RECEIVE YOUR PATENTED IDEA ON A NON-CONFIDENTIAL BASIS. YOU SHOULD ONLY PROVIDE INFORMATION THAT YOU ARE WILLING TO ALLOW 3M TO USE WITHOUT ANY RESTRICTION, OR EXPECTATION OF COMPENSATION OR THAT 3M WILL HOLD SUCH INFORMATION IN CONFIDENCE.
Apple Computer — screenshot taken 2/15/2010
TERMS OF IDEA SUBMISSION
You agree that (1) your submissions and their contents will automatically become the property of Apple, without any compensation to you; (2) Apple may use or redistribute the submissions and their contents for any purpose and in any way; (3) there is no obligation for Apple to review the submission; and (4) there is no obligation to keep any submissions confidential.
AGFA — screenshot taken 2/15/2010
The general description of your idea in the Non-Confidential Idea Submission Agreement should not include anything you deem proprietary or confidential. Agfa assumes no confidential relationship with you when you sign and send in that Agreement, neither does Agfa agree to maintain the idea in confidence.
Baxter — screenshot taken 2/15/2010
Before we, Baxter, will consider reviewing an idea, both parties, must agree that it must be done on a non-confidential basis. “Non-confidentiality” means that Baxter is not required to keep your idea a secret and that, if your idea is not protected by a patent, Baxter is free to use your idea for any purpose.
Becton, Dickinson — screenshot taken 2/15/2010
BD cannot accept confidential information.
Benjamin Moore Paints — screenshot taken 2/15/2010
[I]n your communications with Benjamin Moore, please keep in mind that Benjamin Moore does not accept or consider any creative ideas or suggestions relating to products or marketing plans unless it has specifically requested by them. Therefore, please do not send to Benjamin Moore any creative or original materials such as ideas for products, or any other creative suggestions, ideas, concepts or other information. Our creative and marketing departments are continuously launching new product, packaging, and marketing ideas. Often, these ideas are in the developmental stage for years prior to actually being launched. If you choose to forward or transmit to Benjamin Moore’s website by electronic mail or otherwise any suggestion type communication or material, including an personal data, questions or answers, comments, suggestions, or the like, such material will be treated as non-confidential and non-proprietary. Furthermore, Benjamin Moore is free to use any ideas or concepts contained in any communication you send to Benjamin Moore’s website for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such information.
Benjamin Moore will, however, consider ideas that are covered by an issued patent. Please include specific information regarding your patent, including the patent number(s).
BFS Innovations — screenshot taken 2/15/2010
Note: It is our experience that for legal reasons, most prospective customers within our extensive network are unwilling to review ideas that are not already patented, or at a minimum, patent pending.
Also, please note that any idea submitted without an accompanying Outside Submission Agreement will be considered a non-confidential idea submission with all rights waived, which bfs innovations Inc. is free to use as it deems appropriate, and may destroy the ability to obtain a patent on your idea.
Black & Decker — screenshot taken 1/28/2010
We will only consider your proposal in open, that is non-confidential circumstances.
As stated above, we will only consider ideas for which a patent has been applied. This, in our opinion, is the best way of ensuring that your intellectual property is afforded the utmost protection possible.
Blue Highway — screenshot taken 2/15/2010
Blue Highway will consider ideas only on a non-confidential basis. By submitting your idea, you neither assume a confidential relationship with us nor receive a guarantee of secrecy from us. The business risks associated with confidential relationships and obligations of secrecy are too great for the company to enter into them for the purpose of preliminary evaluation of unsolicited ideas…
We prefer that you protect your interest in your idea before submitting it to us. Protection is important because, by disclosing your idea to us, you may lose your proprietary rights in the information. We suggest you contact the United States Patent and Trademark Office (or the patent office in your country), or consult your attorney.
Campbell Soup — screenshot taken 2/15/2010
I understand that Campbell does not want to accept, hold in confidence, or keep secret any information about an idea that I submit to it. I agree that no confidential relationship or obligation of secrecy is established between Campbell and me with respect to the idea I submit.
Cargill — screenshot taken 2/15/2010
To submit your idea, fill out the Idea Submission Form as completely as you can. As much information as you can provide ensures we understand your idea and can give it a comprehensive review. Please not that all information you provide is on a non-confidential basis.
Coca-Cola — screenshot taken 2/15/2010
No Confidentiality or Secrecy
Company does not agree to hold a submission in confidence or as a trade secret. You also understand and agree that no confidential relationship exists or is established, expressed or implied, between you and Company, and Company is free to disclose or use the submission as it deems fit.
Codman (a Johnson & Johnson company) — screenshot taken 2/15/2010
The Idea Network website has been designed to facilitate the submission of patented inventions. However, we also accept submissions for the following:
- Inventions for which a patent application has been filed (patent pending)
- Inventions for which information has been published
- Non-confidential suggestions for improvements of existing products
Please note: Codman can no longer accept confidential information relating to an invention for which a patent application has not been filed or for which information describing the invention has not been published.
Coleman — screenshot taken 1/28/2010
In order to protect inventors and Coleman, only patented inventions will be considered. You may send Coleman a copy of your issued patent for review. Please do not send any confidential information with your patent. We will not review any patents pending.
Covidien — screenshot taken 2/15/2010
We will only consider an idea submission on a non-confidential basis and assume no obligation to treat any idea submission as confidential. There is no confidential relationship established between you and Covidien when we receive your idea for evaluation. Only non-confidential material is to be submitted to us for evaluation.
Dial — screenshot taken 2/15/2010
In order to protect the interests of both the product inventor and The Dial Corporation and prevent any possible misunderstanding regarding unsolicited product ideas from outside of The Dial Corporation, we will only review and evaluate product ideas that are patented or have a published patent application.
Under the laws of the United States and most foreign countries, you may be able to protect your ideas by obtaining patents, trademarks and copyrights. Further, you may be able to maintain your ideas as “trade secrets” by protecting them from non-confidential disclosure. However, our policy does not allow the initial submission process to be a confidential review.
Non-confidential disclosure of any inventive part of your idea to others prior to obtaining a patent may result in loss of potential patent rights in most countries of the world. So, we strongly recommend that before you present your idea to us, you consult a patent attorney for professional advice. The Dial Corporation will notify you if a Confidential Disclosure Agreement will be needed in further discussions or evaluations.
Fisher-Price — screenshot taken 2/15/2010
Any such submissions and any questions, comments, suggestions, or the like submitted by you to Fisher-Price via this Website, or by fax, mail or otherwise, or transmitted, posted, or uploaded by you to this Website (collectively, “Your Submissions“) will be treated as non-confidential and nonproprietary…
You grant Fish-Price a non-exclusive, royalty-free, perpetual, irrevocable, and sublicensable right and license to reproduce, distribute, publish, transmit, modify, adapt, translate, display, distribute, sell, license, publicly perform, prepare derivative works based upon, and otherwise use or exploit Your Submissions throughout the world in any and all media, and means and manners now or hereafter known or devised.
Ford — screenshot taken 2/15/2010
Please do not submit confidential information. Ford will not keep your idea confidential, as your idea will be copied and distributed to many people at Ford for evaluation. We do not wish to make your idea public, but there are a large number of Ford specialists that will review the idea, so it may be discussed with individuals outside of the company. If you would like to keep your materials confidential, do NOT send them to us. WE WILL NOT REVIEW CONFIDENTIAL INFORMATION.
Fossil — screenshot taken 2/15/2010
We will also not consider ideas submitted to us under an agreement of confidentiality. Although submitters often request that we review their information on a confidential basis, Fossil is not prepared to assume the business risks and administrative burdens associated with confidentiality agreements in most cases. For this reason, we will only consider information submitted on a non-confidential basis.
General Mills — screenshot taken 1/28/2010
We can accept a variety of non-confidential forms of information…
In order to review and respond to submission in a timely manner and to meet legal requirements of handling confidential information, we cannot accept confidential information at this initial phase in the process. If, after our preliminary review, we are interested in pursuing your technology further, we will sometimes ask that you sign a confidentiality agreement to allow for further exchange of information.
General Motors — screenshot taken 2/15/2010
Please not that receipt of your submission creates no obligation on the part of GM in any way and GM does not consider it confidential. Your submission is being delivered voluntarily and without restriction and we conclude that GM is free to use the information provided.
Halosleep — screenshot taken 2/15/2010
After six (6) months, DISCLOSING PARTY’S rights with respect to all information disclosed and submitted shall be limited to those rights, which DISCLOSING PARTY obtained or may obtain under the Patent Laws of the United States or any foreign country.
After six (6) months, HALO has no further duty to keep such information in confidence, and HALO is free to make whatever use of the information it wishes so long as it does not violate DISCLOSING PARTY’S patent rights.
Hollister — screenshot taken 2/15/2010
I am voluntarily submitting non-confidential information pertaining to an idea, invention or product I would like to have you consider.
I understand that Hollister Incorporated may be working on the ideas which I am submitting or may already know of such ideas for other sources. Therefore, I agree to the following terms:
1. Disclosure of ideas or inventions to Hollister does not establish a confidential relationship between the submitter and Hollister.
2. Submission of any idea or invention for examination and consideration by Hollister is understood to impose no obligation, either expresed or implied, on Holllister.
Intel — screenshot taken 2/15/2010
The submission will not be received by Intel in confidence, nor will its consideration by Intel give rise to any confidential relationship between the parties. In the event that no agreement relative to the acquisition of rights by Intel is reached, Intel’s rights and liabilities will be determined solely under the Patent Laws.
KCI — screenshot taken 2/15/2010
I am submitting my ideas to KCI on a non-confidential basis. I agree that no confidential relationship or obligation of secrecy is to be established between me and the Company with respect to the submitted ideas and materials.
I agree that KCI is not obligated to keep secret any information I submit under the agreement, and KCI may retain all materials I submit.
I agree that KCI has the unrestricted right to use any submitted ideas, without compensation, except to the extent that any such disclosure is protected by a valid patent, copyright or trademark issued under the laws of the United States or a foreign country.
Kraco Enterprises — screenshot taken 1/28/2010
Kraco’s management requires that ideas from the outside have at least a provisional patent registration. Unless your product fits into those categories and is also registered with the US patent office we would not have the time or space to evaluate it.
Kraft — screenshot taken 1/28/2010
Depending on the type of idea you have, you may have proprietary rights in it. Therefore, you should consider protecting it through patents or copyrights before submitting it to Kraft. To best understand whether you could obtain a patent or copyright protection for your idea, you should consult with your own lawyer. Kraft employees are not authorized to consult with you on these matters. Further, because disclosing your idea to Kraft could affect your ability to obtain proprietary rights, please submit your idea to Kraft only after you have obtained the protection you feel is necessary…
Kraft will only review submissions on a non-confidential, no obligation basis as set forth in the “Submission Agreement”.
Johnson & Johnson — screenshot taken 2/15/2010
Ideas submitted should be: Non-confidential
Lensfest Media Group — screenshot taken 2/15/2010
I acknowledge that the disclosure is being made on a NON CONFIDENTIAL basis, and that no confidentiality obligations or legal relationships whatsoever are created by… submission.
Lifecore Biomedical — screenshot taken 2/15/2010
We will only consider non-confidential submissions of ideas
You may have proprietary rights in your idea, and should therefore consider protecting it (for example through patents or copyrights) before disclosing it to Lifecore Biomedical. This is especially important because disclosing your idea to us may affect your ability to protect these rights. Please submit your idea to us only after you have taken steps you believe are necessary to protect your rights.
Lifecore Biomedical employees are not authorized to act in any consulting capacity or furnish an opinion or any advice regarding the appropriate protection for an idea. Any decision regarding these matters must be based solely on your judgement and the advice of your own lawyer or consultant.
Maidenform — screenshot taken 2/15/2010
I affirm that I have not provided, am not now providing, and will not provide any unsolicited confidential information to Maidenform regarding my idea and agree that Maidenform and its employees can treat this and any other communications by me as non-confidential regardless of when or how it was transmitted, labeled, or described…
4. I agree that this submission is non-confidential and that Maidenform is free to use any information in or attached to this Form as it wishes.
Nestle — screenshot taken 2/15/2010
This website describes the process in order to submit your concept to Nestle. You must understand that all information submitted to us at this stage must be non-confidential, regardless of whether a patent covering such information has already been filed or not.
Procter & Gamble — screenshot taken 2/15/2010
Only non-confidential information is included in my submission. All information disclosed to P&G in this submission will be considered as non-confidential public information.
Rolls-Royce — screenshot taken 2/15/2010
All Submissions are made on a non-confidential basis. There is no obligation on the part of Rolls-Royce to maintain the confidentiality or secrecy of all or any part of any Submission. Rolls-Royce may disclose the contents of any Submission to any person within or external to Rolls-Royce that Rolls-Royce, at its sole discretion, deems necessary…
For submissions not covered by patent protection Rolls-Royce has the unrestricted right to use any part or all the Submission, whether or not Rolls-Royce was working on similar ideas or technology prior to receiving the Submission. Any compensation given to the Submitter is purely at the discretion of Rolls-Royce.
Rubbermaid — screenshot taken 1/28/2010
Newell Rubbermaid does not currently accept ideas or new product suggestions that we have not asked for (aka “unsolicited ideas”). Please do not mail us any documents or physical prototypes of any ideas, as these items cannot be returned to you.
From time to time, Newell Rubbermaid does post specific requests for information as well as innovation challenges on our website under “Do Business with Us.” These requests are always focused on a particular technology, product category, or consumer need and are not “open calls” for unsolicited ideas. When responding to a specific area of interest, your idea must meet several requirements. For instance, your idea must be patented or patent pending with a published patent application.
Rhythm Tech — screenshot taken 2/15/2010
[B]ecause Rhythm Tech Inc. is actively engaged in research, engineering, development, and marketing in a great many product lines, it cannot receive or consider an idea on the condition that it is disclosed in confidence or that it shall be kept secret, since the idea may have been previously known or made available to the Company or to the general public…
As an aid in submitting your idea, we suggest the following procedure: If you believe your idea to be patentable, see a patent lawyer.
Shell — screenshot taken 2/15/2010
Any ideas or other material submitted by you will be treated as having been submitted on a NON-CONFIDENTIAL basis whether or not such ideas or other material are marked or referred to by you as confidential. Shell GameChanger will have no duty to treat such ideas or other material as confidential. Shell GameChanger may pass on any ideas or other material submitted by you to our venture capital and other partners. Again this will be on a NON-CONFIDENTIAL basis.
Springs Global US — screenshot taken 2/15/2010
In order to ensure that there is no confusion or misunderstanding regarding the origin or ownership of any idea/invention submitted, Springs Global has developed a policy under which it will not undertake to review or evaluate information that is claimed to be confidential by any person or entity outside Springs Global. Therefore, you agree and understand that you are submitting the Idea on a NON-CONFIDENTIAL basis, and agree that Springs Global will not be obligated to keep secret any information that is submitted under this Agreement.
Stanley — screenshot taken 2/15/2010
The Company assumes no obligation with respect to any unsolicited idea unless and until the Company enters into a written contract to pursue the idea, and then only as expressed in the contract. This means, among other things, that if the Company decides to review your proposal: the Company assumes no obligation of confidentiality with respect to your idea; the Company undertakes no obligation to develop your idea; the Company undertakes no obligation to pay you anything for your idea… and the Company undertakes no obligation of any kind to your or anyone else with respect to your idea… Simply put, any review of your submission at this time will be made by the Company on a non-confidential, gratuitous, and non-committal basis, and the Company will remain free to develop, acquire or market products or services competitive with those offered by you.
Telebrands — screenshot taken 2/15/2010
(8) you are aware that under the law of the United States and most foreign countries, you ma be able to protect your Idea through application for patents, trademarks, copyrights, or maintain your idea as a “trade secret” by protecting it from non-confidential disclosure… (10) Telebrands is under no obligation to hold your Idea in confidence, or to use it…
Unilever — screenshot taken 2/15/2010
In order to preserve Unilever’s rights upon receipt of outside ideas and to eliminate the risk of jeopardizing on-going research programs, projects, and developing concepts within Unilever, it is Unilever’s policy to not accept confidential material and to only accept material on a NON-CONFIDENTIAL basis only AFTER the Submission Release and Confidentiality Waiver Acknowledgement (see Submission Procedure) has been signed by the submitter and provided to Unilever.
Xerox — screenshot taken 2/15/2010
By policy, Xerox requires that you complete our standard non-confidentiality disclosure Agreement if your submission includes anything other than issued patents. This Agreement states clearly that no confidential relationship or obligation of secrecy is created between the submitter and Xerox Corporation by the submission and its consideration by our company.