exploiting your idea
In every business there are pitfalls to avoid. Moreover, there are a number of common misconceptions
with respect to the protection of ideas which should be corrected. While we have not been able to
catalog all such pitfalls and misconceptions, we have set forth below a few to look out for in
protecting and exploiting your idea.
PITFALLS
Many people believe that they and their invention can be protected if they write a letter to themselves
setting forth a disclosure of their invention. Since the letter will normally bear a postmark by the US
Postal Service showing the date it was mailed, it is believed that a provable date of possession of the
invention is obtained for the price of a stamp. However, this is not generally considered good practice,
and the evidence obtained by this method is not likely to be sufficient to establish a date of invention. For
one thing, an envelope can be steamed open to change the disclosure after the postmark date and then
resealed. For another, the law generally requires that evidence concerning invention dates be
corroborated—that is, that there be someone or something other than the inventor and his
contemporaneous writings to establish that the inventor really did what he says he did at the time he says
that he did it.
3.01 Letter to Yourself
A better approach is to prepare an invention disclosure and have it read and witnessed by at least two
people who understand the invention. (This procedure is more fully set forth in Section 4.01.) Then those
two people can be called on to testify that they read and understood that disclosure on the date indicated,
thus establishing a date of conception at least as early as the date they read and understood that disclosure.
The best approach of all is to see your attorney and let the attorney help you to get started protecting
your idea.
The statement “Patent Pending” can only be placed on a product or packaging for a product after a
patent application has been filed. United States law provides for its use and makes it a crime to use it
falsely. However, it does not establish any specific legal rights. It is only a notice of possible future
protection.
3.02 Patent Pending
Nevertheless, a notice of possible future protection can have very important practical value. Another
company which is thinking of producing a similar product will see the notice “Patent Pending” and will
know that the product may ultimately be protected by a patent, but it will have no way of knowing what
the scope of that patent will be or when it might issue. Thus, it will not be able to safely “design around”
the first company’s rights, and it may either stay out of the field altogether or design a more radically
different product than it actually had to. For that reason, sometimes a “Patent Pending” notice has more
practical value than the patent which eventually issues!
There are some companies and individuals who will encourage you to retain them to use their best
efforts in selling your idea before you have established a salable property interest (such as a patent right)
in the idea. The Federal Trade Commission, an agency of the US government, has found that a number of
these companies and individuals are fraudulent. Thus, it is always better to look very, very closely before
you pay.
3.03 Offering to Sell an Idea Before You Have Established a Property Interest in the Idea
One thing you should do before retaining a company or individual who is interested in marketing
your idea for you, besides carefully looking over that company or individual, is to find out if your idea is
really protectable by seeking advice from your patent attorney.
As discussed in Section 4.10 on Misappropriation of an Idea, you may have a claim for compensation
for the service of submitting an idea to a company even if your idea is not patentable, but don’t count on it.
In the real world, it is extremely unlikely that you will be able to obtain compensation in this manner,
since most companies will not look at your idea unless it is disclosed in a non-confidential manner and
with a release or waiver signed by you stating that you are relying solely on whatever rights you can
establish under patent, trademark and copyright laws of the United States. Accordingly, if you offer to sell
an idea without at least knowing that there is a good chance that you will be able to establish a property
right in the idea, you may be giving up your trade secret rights.
Beware of the claims made by invention development companies or others on
3.04 Disclosure Document “Protection”?
Beware of the claims made by invention development companies or others on the value of the filing
of a disclosure document in the Patent and Trademark Office. As clearly set forth in Section 4.03, entitled
“Disclosure Document Program,” a disclosure document is, at most, evidence of a date of conception of
an idea. It does not provide any protection over the idea, and, if further steps are not taken fairly promptly
to protect your invention, even the evidence of a date of conception is unlikely to do you much good.
3.04 Disclosure Document “Protection”?
Another pitfall to look out for when dealing with a company which offers to help you develop and
market your idea is its providing you with an elaborate “evaluation report” of the idea. Such reports
typically state in glowing terms that the idea has great merit and should be readily salable in the
marketplace. These evaluation reports have little or no value to companies that are really interested in
purchasing an idea. It generally appears that the only purpose of such evaluation reports is to convince
you to retain the services of that invention development company to market your idea for a substantial fee.
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