How To Protect Your Ideas Without Giving Them Away: Simple Steps To Protect Your Potentially Valuable Ideas
NDAs – Nondisclosure Agreements
If you disclose your idea without taking steps to protect it, you’re giving it away.
An NDA sets out WHO you’re disclosing your idea to, WHAT the subject of the nondisclosure is, and HOW you’ll enforce it, i.e., what the remedies are for disclosure. Figure out these three things BEFORE you disclose your idea, and get an NDA drawn up.
WHO should be easy. A prospective business partner? An investor? Know who you’re dealing with, and get their full contact information on the NDA.
WHAT is more difficult. You want to define the subject of the disclosure broadly enough to cover everything, but not so broadly that your description becomes meaningless. The defined confidential information must be carefully tailored to the specific parties and disclosures, and there should also be a time limit.
Remember that things in the “public domain” that are already known or obtainable from other sources won’t be protected – this NDA is just for your specific disclosures. Then make sure your NDA includes enforcement mechanisms: damages, injunctive relief, an attorney’s fees clause for the prevailing party in the event of a breach, and a dispute resolution process, etc.
Besides defining and protecting your disclosures, the NDA underscores your specific intent to do so. By the same token, every protective thing you do – affixing a WGAW registration and a copyright notice to your written materials, having contracts, having a lawyer, etc. – all send unmistakable signals that you know your rights and are serious about protecting your work.
Put It in Writing
Yes, you can protect an idea. While it’s true that copyrights protect only expressions of ideas, trademarks protect only logos and slogans that indicate the source of goods or services, and patents protect only processes and inventions, it’s not true that ideas aren’t protectible.
You can protect an idea submitted to someone if you make it very clear that you expect to be compensated for the value of your idea, and they agree to accept your idea on those terms. They agree that if your idea has value to them and they demonstrate that value by using your idea, then they owe you compensation. When these “idea submission” cases are litigated, there is usually a written contract, but sometimes there is only a convincing paper trail, such as emails or texts that confirm meetings, phone calls, oral agreements, collaborations, and development sessions.
That evidence establishes that someone disclosed an idea with the expectation of being compensated. Oral testimony helps too, but your best defense against ‘idea theft’ is getting your recipient to acknowledge that you expect to be paid for the value of your idea. If you can’t prove you had an agreement, you won’t be able to enforce your claim.
Involve Your Lawyer
Making sure your lawyer participates every step of the way encourages everyone you deal with to take you seriously. It makes it crystal clear that you’ve got legal muscle monitoring your transactions and looking out for your interests. You don’t have to explicitly say “mess with me, and you’ll hear from my lawyer”; just having your lawyer cc’d, or having communications transmitted by your lawyer, says that, without overtly threatening anyone.
And if you’re seeking investors, this is an effective way to reassure them that you’re willing to take the necessary steps to safeguard their IP and their investment.