Associate Attorney
I’VE GOT AN IDEA!
Is my Idea Protectable? … Well, it depends.
You may think that ideas aren’t protected. However, this is an overstatement of intellectual property law. In some cases, ideas can be protected. However, it is important to note that not every idea is protectable. Generally, whether an idea is protectable depends on the type of idea it is and if it falls within a category of unprotectable ideas. The following types of ideas are generally not protectable: (1) an abstract idea of a concept, (2) an idea that was voluntarily “blurted out” to a third party, (3) ideas that are not fixed in a tangible medium, (4) techniques that are not protected by patent or trade secret, and (5) things that are not protected by copyright or patent laws.
Moreover, the circumstances surrounding the disclosure impact the protectability of the idea. If the idea is unsolicited, that is disclosed to a third party without their request, the idea is not protected. If the idea is encouraged, an agreement may be in place to determine if the discloser will be compensated for their idea or not. Finally, if the idea is solicited, there is an expectation that the disclosing party would be compensated.
What should a Non-Disclosure Agreement include?
A non-disclosure agreement protects your valuable ideas from being stolen or used without permission. A non-disclosure agreement which is put in place before the disclosure is the best mechanism for ensuring that your idea is protected.
A non-disclosure agreement can contain provisions detailing such things such as: (1) what types of ideas are protected, (2) what the disclosing party gets in exchange for the disclosure, (3) limiting the recipient’s use and disclosure of the information without the disclosing party’s permission, and (4) remedies in the event that the idea is used or disclosed without the disclosing party’s consent.
In the event of a dispute arising from the breach of an NDA, the disclosing party may hold the recipient liable in the event of a breach.
As such, an NDA is a valuable tool for protecting the valuable ideas that you disclose to third parties. Before you begin sharing your intellectual property with third parties, make sure that you reach out to myself or any other intellectual property attorneys to ensure that your intellectual property is protected!