Inventions can receive patent protection in the United States.An inventor can exclude others from making, using, or selling their invention for a limited time if they have a patent.If you don't know if getting a patent is the right way to proceed with your idea, what should you do?Holding information as a trade secret is one way to protect ideas and inventions.If the invention has a long term impact or value, it may be worth considering this option.
Step 1: You should identify the subject matter of your idea.
Before you make a decision on how to proceed, you should know what you are trying to protect.Is it your idea to open a donut shop?That idea won't be protected by the law, so you can try to keep it a secret from your competitors.Is your idea a specific formula for a new type of donut icing?That kind of idea can be protected under the law.
Step 2: Determine the amount of protection you need to give your idea.
Do you plan to keep your idea a secret?Are you hoping to keep the secret from your competitors?Would a limited time suit your needs or would you prefer to keep your idea a secret?In deciding what kind of protection you want to pursue, these are important considerations.
Step 3: You should be able to patent your invention.
One of the requirements for obtaining a patent is that the person invents or discovers any new and useful process, machine, manufacture, or composition of matter.It was wanted to be patented.If your invention qualifies for patent protection, you can file an application with the United States Patent and Trademark Office.An examiner will look at your application to determine if your invention is new and non-obvious as compared to prior inventions.If you are granted a patent, you will have the exclusive right to make, use, or sell the invention for 20 years.If you discover others are using your invention without your permission, you can file a lawsuit in federal court.
Step 4: There is a patent application to be filed.
This is a less detailed filing with a lower filing fee.Until you file a formal application to replace it, the application is good for up to 12 months.You can hold the date of your invention while you decide if you want to apply for a patent.If you eventually file a formal application and there is a question as to the date of invention, the invention date can be as much as a year earlier.You can't get a new application after a year.After a year, if you decide not to proceed with a formal patent application, the provisional application will be abandoned.
Step 5: Evaluate if your idea qualifies for trade secret protection.
If you choose not to apply for a patent for any other reason, your invention may still be protected under trade secret law.There are more trade secrets than patents.They can include formulas, patterns, programs, devices, methods, techniques, and processes.Coca-Cola is the most well-known example of a trade secret.Coca-Cola has kept its formula secret for ninety years.The formula would have been made public after a number of years if it had been patented.Coca-Cola keeps its formula secret.
Step 6: The advantages and disadvantages of patent protection can be considered.
The benefits and drawbacks of both types of intellectual property make it important to consider all the information before making a decision.Patents give you the ability to exclude others from making, using, or selling your invention for 20 years.If anyone wants to use your invention during that time, they need to get your permission and enter into a license agreement with the other party.The prospect of lucrative license agreements may be attractive to other companies that wish to acquire your company.The patent application process can take a long time.There are many patent applications that are never granted.Patent application fees are substantial, and you will likely need to pay a patent attorney to properly prepare your application, which must include a detailed description and diagrams of your invention.Patent applications have to be published 18 months after they are filed.Anyone can make, use, or sell an invention after 20 years.
Step 7: There are advantages and drawbacks to trade secret protection.
Think about the advantages and disadvantages of trade secrets once you consider the potential benefits or shortfalls of patent protection.You don't have to pay anything to get trade secret protection.Unless the information is disclosed to the public, trade secret protection never expires.You can bring a trade secret misappropriation suit in state court, which is quicker than federal court.You don't have exclusive rights to the information.Under the law, someone can reverse engineer your product, but they can't be held accountable.You must apply for a patent within a year of coming up with the complete idea for the invention.If you want to eventually patent it, you can't keep it as a trade secret for more than a year.
Step 8: Limit the number of people who know the secret.
If you decide to pursue trade secret protection, you should carefully assess how many people other than you already know the secret, and figure out how much more will need to know it.The more people know the secret, the more likely it is that one or more of them will reveal it to others.Make sure that those who already have the secret information are aware of the importance of keeping it a secret.
Step 9: Forbid public use of your idea.
If you decide to allow the public to use or add to your invention, it may preclude you from getting a patent.It could prevent you from claiming the idea is a trade secret.
Step 10: There should be confidentiality agreements in employment contracts.
If your business involves a trade secret, you should require your new employees to sign a confidentiality agreement as part of their employment contract.The proper language can be helped by an attorney.
Step 11: Non-disclosure agreements can be signed with your business partners.
If you need to reveal trade secret information to other companies, you should require them to sign non-disclosure agreements.Most companies will sign these contracts, even if the other company wants to negotiate the terms.Make sure you are comfortable with the time period of the NDA.An attorney can help you draft the NDA and negotiate with the other company.You should get another form of protection for your trade secret if another company doesn't sign an NDA.If you don't protect the trade secret information, the other company can use it and even apply for a patent on it.
Step 12: Trade secrets are secured under a lock and key.
This includes both written and electronic documents.Limit the number of copies that can be made and keep written documents secured.Limit access to electronic documents to people with appropriate credentials.
Step 13: Look into possible trade secret misappropriation.
If you hear of a competitor using your trade secret information, you should gather as much information as you can.If you hear of a rival donut shop making a new icing, you can buy one of their donuts and try to reverse engineer it to see if they are using your formula.
Step 14: Your idea should be considered a trade secret.
The first thing you will need to prove is that your icing is a trade secret if you determine that the rival shop is making an icing identical to yours.The extent to which the information is known outside of your company is one of the factors considered by courts.Your employees and others in your business know the extent to which the information is known.You took measures to keep secrets.The information is valuable to you and your competitors.The amount of money spent on developing the information.How easy would it be for others to duplicate the information?
Step 15: Show the elements of a trade secret claim.
You need to show the court that you took reasonable precautions to protect the information from being disclosed and that it was mishandled.The law states that misappropriation means someone acquired the information through improper means or an employee violated his/her confidentiality obligation.If you could show that the rival shop stole the written formula from your locked filing cabinet, they could be held liable for trade secret misappropriation.If a competitor reverse engineers a trade secret by buying one of your donuts and attempting to recreate your icing, Misappropriation doesn't apply.
Step 16: Take legal action.
If you can resolve your differences informally, you should talk to your competitor.There are 47 states and the District of Columbia that follow the Uniform Trade Secrets Act.The law of trade secret misappropriation is spelled out in the statute.The facts of your case are more important than your state's law in formulating a misappropriation claim.If one of your employees gave the donut icing recipe to a competitor, for example, you may be able to file a claim for breach of contract, unfair competition, or both.
Step 17: Take into account the risks and benefits of the lawsuit.
An injunction, gag order, monetary damages, court costs, and attorney's fees can be obtained if you prevail on a misappropriation claim.If you don't prevail, the court may require you to pay the other side's costs and fees.Attorney's fees for taking a trade secret misappropriation case to trial can cost tens of thousands of dollars.