Creative people come in all shapes and sizes. Some are vivacious souls with a dash…
How Can I Protect My Ideas While I Develop Them?
Unless you’re able to develop your ideas from concept to prototype without any help, it’s important to know how to safeguard your ideas.
Some clever folk have the ability to take their inventions or ideas right through to the stage where they can register their Intellectual Property (IP) rights with a patent or as a design. But for those who are great with ideas but lack the skills to create CAD diagrams, moulded prototypes or working models, you’ll need to involve others in your project.
I wrote recently about the need to protect your ideas by keeping them under wraps, but when you have to involve third parties, there are ways to do it safely. For inventions and innovations that can be protected by patent, consider lodging a provisional patent which will provide 6 months of interim protection while you prepare a comprehensive patent application.
For ‘Designs’, and in all cases where you need to use a third party to develop any aspect of your project, a Non-Disclosure Agreement (NDA) is essential. NDA’s are also known as Confidentiality Agreements, and in Australia, we frequently refer to them as Confidentiality ‘Deeds’.
Essentially, they all share the same goal of allowing confidential information to be discussed for limited purposes without fear of it being shared or published broadly. Unlike a handshake agreement or a general understanding that something is to be kept a secret, a NDA gives you legal recourse for any breach.
Timing is important, and you should always have your NDA in place before you discuss any details of your project. It’s critical, that initial enquiries to ensure the other party has the skills and ability to do what’s needed, should be kept in very broad terms until an agreement is signed. Any information conveyed prior to the agreement may not be protected, even after one is in place.
Agreements can be unilateral, where only one party is disclosing sensitive information to the other. Or they can be bilateral where both parties are disclosing information to each other, as in the case of joint ventures.
Employers who handle sensitive information will often have a confidentiality agreement in place with their own employees, but don’t assume this is the case. In situations where a party to your NDA will have to share information with their staff, you may need to request that they, in turn, obtain NDA’s from their employees if their existing protocols are lacking.
Agreements v’s Deeds.
Agreements rely on the need for ‘consideration’ to be binding. An example is a business transaction where money is exchanged. It makes the terms of the agreement harder to enforce if for some reason the financial part of the transaction doesn’t take place. It might be that a dispute arises over the quality or timing of the work produced, or for any number of other reasons. But in each case, it places the agreement to maintain confidentiality at risk.
A Deed, however, is a legally binding agreement regardless of ‘consideration’ and provides more certainty to the disclosing party because it can be enforced even if the business transaction doesn’t eventuate.
So rather than risk your assets to someone who just offers to ‘help’, keep the arrangement formal and insist on a NDA wherever a third party becomes involved.
“The opinions expressed by Smallville Contributors are their own, not those of www.smallville.com.au"
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