Protecting Ideas: Can Ideas Be Protected or Patented?
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Nov 23, 2010 @ 1:58 pm
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Unfortunately, despite what you may have heard from late night television, satellite radio commercials or snake oil salesmen, there is no effective way to protect an idea. Copyrights protect expression and patents 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 obtained and no exclusive rights will flow unto you. This does not mean that you should give up when you only have an idea, but it does mean that you will need to proceed to flesh 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. Inventions can be patented.
For goodness sake stop thinking that you will get rich by selling your idea to industry and sit back and collect royalty checks for doing nothing. If inventing were that easy everyone would be a filthy rich inventor! Having said that, however, a good many inventors will become stuck in the idea phase. If you are stuck at the idea phase you are not alone. It may surprise you to learn that you just think you are stuck in the idea phase and you might actually have an invention. United States patent laws do not require you to have a prototype in order to apply for a patent, all that is required is that you be able to describe the invention so that others could both make and use it.
With some guidance to coax out your idea you might actually have more than you think, then with the help of a professional illustrator or some 3D renderings you might soon realize you have an invention and not a mere idea. We are getting a little ahead of ourselves, but for now it is important not to despair. If you were clinging to the belief you could make millions from an idea alone you would likely have already stopped reading.
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 in order to commercialize and monetize your ideas.
If what you have is not an invention, but a story idea for example, you should be thinking about protection afforded under the copyright laws. Here 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, which is the legal way to say it exists upon creation (i.e. writing it down). You do not need to do anything special to claim a copyright, and 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 whenever possible.
With respect to inventions, you should be thinking about getting a patent. Unfortunately, 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 (provided other legal requirements are satisfied). 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. To many inventors erroneously believe that if they invented first they can wait for years and then file an application after some big corporation has started to make the invention. Doing that is a recipe for failure. You will have lost your rights and there will be nothing you can do to fix the situation. You are always better served by moving quickly to obtain a patent. Not moving quickly is fraught with risk. See The Risk of Not Immediately Filing a Patent Application.
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 any 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 whatever is in the envelope as of a certain date, and that is only assuming there is a postmark on the envelope (which does not always happen) and further assuming 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. First, there is no poor man’s copyright and, second, 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 it is unopened and you can prove that it was unopened, which is not a given. Because the US patent system is currently a first to invent system, such a mailing could be some evidence, provided of course the envelope does have a postmark, the envelope is not opened and what you included in the envelope actually captured the core uniqueness of your invention sufficient to quality as an invention record. 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 very 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, and there are far better ways to keep an invention record through an appropriate inventors notebook. See Keeping a Good Invention Notebook. If a low cost solution to starting the patent process is what you are looking for 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, and can be various levels of extremely difficult to impossible to achieve.
With a confidentiality agreement 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 exceptionally difficult usually. 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. See Companies Don’t Accept Confidential Submission of Ideas or Inventions.
Companies typically refuse to sign confidentiality agreements 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. In fact, many companies specifically require you to sign an agreement saying that you acknowledge that there is no confidentiality relationship and they can use your idea or invention without your permission and without paying you. So definitely ready anything you do sign, these agreements are not boilerplate or standard between and among companies.
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.
If you do not have some type of patent protection, and you cannot get a signed confidentiality agreement, telling someone about your idea or invention means they are free to use the idea or invention without paying you. For this reason, before shopping your ideas around it is always prudent to refine the ideas into a working invention, or something that seems to work on paper. 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, provided of course you follow all the way through and get a patent issued.
Good luck, and happy inventing!
Article updated November 24, 2010 at 2:22 pm EST per comments 1 and 2 below.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.