Disclosure and Confidentiality

Few topics exercise inventors quite as much as confidentiality and the protection of ideas, which is why we need to deal with it in two places – here, before it all starts, and Project 5. All many inventors think they know with any certainty is that they should keep their idea secret because if they don’t, it will be stolen from them. The obvious problem is that the more you keep your idea to yourself, the less progress you’re likely to make with it. So what’s the solution?

The Disclosure Dilemma

On the other hand, if you disclose your fledgling idea to anyone except a patent attorney or other professional with a duty of confidentiality, you risk losing any chance of protecting it strongly later. And without strong protection, you may also lose any chance of profiting from your idea.

What you therefore need from the very start of your invention odyssey is a low-key, low-cost protection strategy that enables you to:

  • Disclose at least some details of your idea to people who can help you make progress with it or decisions about it.
  • Avoid any disclosure that could prevent you from getting a patent or other form of legal protection later.
  • In practice this involves a mixture of sensible precautions and the judicious use of confidentiality or non-disclosure agreements (Project 5).

Assessing the Risks of Disclosure

1. Information leaked or passed on as a result of disclosure to individuals during private meetings. This type of risk is controllable to a large degree. Much depends on how wisely you choose who to talk to and what you tell them. As long as you take a few basic precautions, the risk of someone stealing your idea is almost certainly low. Most people couldn’t care less about an invention in its ugly duckling stage. As prospects firm up that may change, but by then you should have it protected. In the meantime, let the world’s indifference work for once in your favour.

2. Information placed in the public domain as a result of publicity or exhibition.
The dangers here are less obvious and for that reason much more real, as any public disclosure of your idea can prevent it from being protected (especially patented) later. Particularly tricky areas are:

  • Media publicity and competitions. Both may be useful after you’ve legally protected your idea but definitely not before it. (See also Project 7, Competitions and publicity.)
  • Student projects. Be very careful if your idea starts out as a coursework project, especially if there’s a requirement to exhibit or publish your work. Teaching staff often don’t understand that in law this constitutes disclosure and can have serious consequences. (There may also be implications for ownership of intellectual property but that’s for Project 5.) In our view, any teaching institution that encourages creativity and innovation has a clear duty to help protect new ideas as they emerge.

Who Can You Trust?

You should be safe disclosing details of your idea to people whose professions require them to observe confidence as a matter of course, and who can’t help you without knowing details of your idea. This certainly includes patent attorneys, Intellectual Property Office personnel and patent librarians, and should include public sector personnel such as business or technology advisers and administrators of innovation funding schemes. Anything you tell them shouldn’t count in law as disclosure but if in doubt, ask. The ability to talk freely to such people can be very helpful early on, when you don’t yet know if it’s worth paying to protect or develop your idea.

When dealing with other people or organisations - companies in particular – the picture is less clear. Ideally you should disclose nothing significant without at least a confidentiality or non-disclosure agreement, but in practice getting companies to sign them isn't easy. See Project 5 for more detail.

Disclosure Strategy

What doesn’t work at all well is (a) obsessive secrecy (especially if linked to some ‘they’re out to get me’ conspiracy theory), or (b) a demand for a huge sum of money before revealing even the smallest detail of your idea. Both these are dead-end tactics that will make it pretty much impossible for anyone to help you and will rapidly extinguish any interest from potential stakeholders.

What may work better is a strategy based on these guidelines:

  • Work out exactly how much you can tell people without describing your inventive step, and stick to it. Revealing broadly what your idea is or does (‘It’s a kind of mousetrap’) may be safe; revealing how it does it (‘It uses a laser beam to zap the mouse’) is dangerous.
  • Be diplomatic about your need to restrict disclosure. Try a helpful but firm stance along the lines of: ‘I’ll happily tell you as much as I can, but you’ll understand there’s a line we can’t cross without signing a confidentiality agreement’.
  • Unless they’re trying to help you in confidence, be extra careful what you reveal to experts in your field of invention. They may only need one or two minor clues to figure out your inventive step.
  • Use non-disclosure agreements even if you have patent protection. A patent protects only the information in the patent document and may not protect other aspects of your idea.
  • Even after you’ve protected your idea, don’t accept any offer to publicise it until you’ve weighed up the disclosure risk. You may well need a patent attorney’s advice on this. For example, demonstrating your prototype on TV might generate commercial interest but it might equally amount to giving your idea away for nothing if your protection isn’t particularly strong. No matter how much patent or other IP protection you have, it’s never completely safe to stop being concerned about disclosure. At every significant step in the development of your idea, consider the disclosure risk and do what you can to minimise it.
Overall, while disclosure is something you need to take seriously right from the start, we think it’s important to keep the slightly different issue of legal protection in proportion – which is why it’s our Project 5. There may be an argument for making it your Project 3 or Project 4, but please don’t put it ahead of Projects 1 and Project 2.

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