Have you launched your Startup? Have you blogged about your product or your offering extensively? Have you made videos or tutorials about your product and shared it on YouTube®?
If you answered any of these questions with a “Yes!”, then chances are that you may have unknowingly lost your opportunity to patent your ideas.
As patent attorneys, this is also our biggest regret – to inform clients that their ideas may no longer be patentable simply because their ideas have already entered the public domain.
This is because for any idea to be patentable, the first criteria to be met is that the idea must be novel. That is, the idea must be new and not known to the general public already. So, while Startups enthusiastically share their ideas with everyone, when they do that, they may also be, in a way, relinquishing their Intellectual Property Rights.
Why is this so? Suppose you have an idea for a magic pen with invisible ink. You are very excited about this idea and so you begin marketing it on social media, your blog, splash it across your website and so forth. But your idea is now public and no longer meets the first criteria of novelty and hence, may not be patentable anymore. Strike one.
A person curious about pens may then stumble upon your website or your ads. If this person is a competitor who makes pens or is someone who just loves pens, the question is, how easy will it be for this person to figure out how your magic pen really works? Maybe this person will eventually be able to figure it out for themselves. This poses another problem: not only did you make your magic pen idea public, but as a result of it, you made this curious person who learnt about your idea, actually “figure it out”. This works against the second criteria that needs to be met for ideas to be patentable, that is, your idea must be inventive or not obvious over and above what is already known. The person who figured out your magic pen idea would say that the technology behind the magic pen was obvious given the knowledge he already had in the field. So, your idea is yet again rendered not patentable since it no longer meets the second criteria of inventiveness. Strike two.
Now let us suppose you were prudent enough to keep your magic pen idea still under wraps and only disclosed it to potential clients privately. Of course, you might have even obtained Non-Disclosure Agreements (NDAs) signed from your clients prior to such a disclosure. Even so, patent law is only lenient to the extent that you can prove without doubt that the disclosure made under NDA was confidential and for research or testing purposes alone. In addition, in India, patent law requires that the time elapsed since such a disclosure under NDA must not have exceed the one-year limit. In other words, you have one year from the date of such a disclosure made to the client under NDA to protect your idea with a patent application.
However, during this permitted time period of one year, it is imperative that the idea is in no way made public either by you or by your clients. Even if this happens accidentally, chances are that yet again, your idea may not be patentable on account of it not being new or novel as required by the first criteria. Strike three.
One additional matter of concern with NDAs is that they may be not completely fool-proof or maybe badly drafted to allow loopholes that potential clients may take advantage of themselves. If so, it would be futile for anyone to argue in a court of law that they were the first to invent their ideas and hence, the idea should ideally belong to them. Unfortunately, patent offices across the world have now moved from a “First-to-Invent” problem to a “First-to-File” solution. That is, patent offices today give priority only to inventions or ideas for which patent applications were filed first irrespective of who “claims” to have invented it first. So long as the idea was not made public, the first person to file a patent application for an idea gets the legal protection to claim that idea as their own. So, if your NDAs have not been vetted properly by your lawyer or if important clauses related your intellectual property have not been included in your NDA, you may again be at the losing end of things. Strike four.
Add to that, in most countries outside India, the one-year protection from an NDA may not be applicable and hence, you may immediately lose your right to patent your idea upon such disclosures. So, it may now be apparent that NDAs do not offer good protection for your ideas and your intellectual property rights.
The simplest, safest, and surest thing that all Startups can to do to avoid any or all such issues or hassles is to file a quick “provisional patent application” for their ideas. Often, based on your requirements, law firms can help you draft and file a patent application for your idea within a few days' time. After this, you are free to share or disclose your idea to anyone and on any public platform without any worry or concern about your idea being stolen or misused. Not just that, you can also now claim your idea to be a “patent pending technology” before customers or potential clients. To top it all, you could also approach potential investors and pitch them your “patent pending technology” while you seek investments with added confidence.
With so many advantages, Startups must be careful not to make the following mistakes until they've filed a patent application for their ideas:
Do not reveal your idea or your offerings. If you have done so and not launched or shared it with anyone yet, it is advisable that you take it down immediately. Wait until a patent application has been filed to showcase it on your website.
- Sales and marketing materials:
Do not distribute any sales or marketing materials to anyone. It is okay to prepare and keep them ready for distribution until a patent application has been filed.
- Product demos at trade shows:
Do not participate in or promote your product on any public platforms such as trade shows or Startup events until a patent application has been filed.
- Product images, screenshots, videos shared online:
Do not showcase product/service images or videos on any public and/or social media platforms such as Youtube®, Facebook® or Instagram® until a patent application has been filed.
- Pilot projects with clients / Client demos:
It is advisable to wait until a patent application has been filed prior to making disclosures to potential clients. NDAs may act as an additional layer of legal security during such disclosures but ideally should not be relied upon as the only legal protection for your ideas.
With these precautions in place, we hope Startups, while being completely aware of the consequences of sharing their ideas openly, take the necessary step of filing a patent application prior to any public disclosure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.