Should You Share Your Idea Without Patent Protection?

Q: I've had an idea I've wanted to present to a company for a long time. I'm just not sure how to secure my idea before presenting it to them. For years, I've thought if a company would sell [product idea deleted], many people would buy them. Is there some way I could present my idea without having to patent it first?

A: First, I must take the liberty of criticizing you for revealing your idea to me in your letter, which goes through several people and was intended for possible publication. When you have an idea or invention, you should keep it strictly confidential and not reveal it to anyone, with the following exceptions: You can show it directly to a licensed patent attorney; to anyone whom you feel is a responsible person, provided they first sign a keep-confidential or nondisclosure agreement (NDA) or sign as a witness to your disclosure describing the invention; and to the Patent and Trademark Office via the Disclosure Document Program (DDP) or a Provisional Patent Application (PPA). Refer to my book Patent It Yourself (Nolo Press) for a sample NDA and instructions for filing a DDP or PPA.

With regard to selling your idea to a company without first filing a patent application on it or actually getting a patent, it's not only risky but also very difficult to make such a sale. I recommend that, before you approach any companies, you first make a written, signed, dated and witnessed record of the conception of the invention, and also the building and testing of it if you have gone this far. The next two things you should do are evaluate it for commercial potential and make a patentability search. If you feel it's commercially viable and patentable, your fourth step is to file a patent application. A patent application is a detailed description of your invention with drawings, some claims (legal descriptions of your invention), a filing fee ($345) and forms to sign. Only then should you submit your idea to companies you feel could manufacture and sell your creation successfully. You'll find that because suits from inventors have burned them, almost all companies will refuse to accept anything in confidence and will actually require you to sign a waiver before they look at anything from you. The waiver requires you to give up all your rights, except those protected under the patent laws. That's why I recommend filing a patent application first.

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Some very small companies, without legal advice, won't require you to sign a waiver. You can try to find such a suitable company, but at least complete the first two steps first. Submit it to them in confidence by requesting them to sign your NDA. However, I've seen cases where even companies who sign an NDA will reject the invention but later will "invent" your idea themselves. Your only remedy will be to sue them, a chancy procedure without a patent. So your best and safest route is through the PTO.

David Pressman, a practicing intellectual property attorney, is author of the bestselling book Patent It Yourself and the interactive software program Patent It Yourself, both published by Nolo Press. Formerly an electronic engineer, David has more than 30 years' experience in the patent profession—as a patent examiner, a columnist for EDN Magazine and a patent law instructor at San Francisco State University. Patent It Yourself can be obtained in bookstores (brick-and-mortar and online), from the publisher (www.nolo.com) and through David's Web site (www.PatentItYourself.com).

The opinions expressed in this column are those of the author, not of Entrepreneur.com. All answers are intended to be general in nature, without regard to specific geographical areas or circumstances, and should only be relied upon after consulting an appropriate expert, such as an attorney or accountant.