May 21, 2007 | last updated May 26, 2012 6:18 am
YOUR GENERAL COUNSEL

How To Keep Your Ideas From Being Stolen

"Someone stole my idea!" This is a common refrain among authors, inventors, artists and others in business. The trouble with the concept that "someone stole my idea" is that an idea, by itself, is not generally protected by intellectual property laws. The law is designed to protect the expression of an idea, and not the idea itself.

This facet of intellectual property law often comes as a bit of a surprise, and it puts inventors, authors and businesses in an extraordinarily difficult situation. Consider the inventor who needs to pitch an idea to other persons in order to gain critical funding or a business that needs to collaborate with a competitor in order to launch technology they have spent years creating. In order to provide some protection, you have to be proactive or risk losing your idea with little possibility of legal recourse.

Keep It Quiet

First, guard your idea by treating it as confidential from the beginning. When you disseminate your idea, it becomes public information and is available to be taken by others. Even before considering legal protections, it is incumbent on the creator to ensure that the idea does not fall into the public domain or into a competitor's hands. It is difficult to protect an idea after it has been disseminated – guard it carefully.

Second, protect the idea from the beginning with a copyright. U.S. copyright protection is triggered automatically when a work is created – meaning, a work is protected by copyright the instant it is fixed in a copy or recording. You can immediately begin utilizing the copyright symbol "©" or the word "Copyright". Put this symbol on each page. The use of the symbol or the word will let everyone who views your work know that it is protected by U.S. copyright laws. It may also act as a deterrent for anyone seeking to copy your work without proper authorization. You do not want anyone to think your work is free for the taking; the "©" or word "Copyright" provide inexpensive protection.

You do not have to formally register your copyright with the U.S. Copyright Office; however, there are distinct advantages. Registering your copyright will create a public record of your copyright claim and provide proof of ownership. Registration also acts as a gateway to infringement suits. Depending on the value you ascribe to your copyright, policing infringement may be important. Additionally, if the copyright is registered within three months after publication or prior to an infringement of the work, statutory damages and attorneys fees will become available to the copyright owner in an infringement action.

While there are other limitations, as well as some exceptions, registration is ordinarily preferred largely because of the distinct advantages. However, there is a risk that others who view your work could capitalize on the underlying concepts, or trade secrets, without infringing upon the copyright. For this reason, there are mechanisms available to address the release of trade secrets available when registering under certain circumstances. Counsel will be able to show what elements of your idea may be protected by intellectual property or trade secret laws, and guide you through the proper process. It is often the case that copyright registration alone will be insufficient to protect your work.

Ask For Discretion

Third, before presenting your idea, consider requiring the other party to sign a confidentiality or non-disclosure agreement. Ordinarily, you – the inventor or creator – will supply the non-disclosure agreement. Depending on the person or entity you are presenting the idea to, they may wish to make modifications to the agreement or may have an agreement of their own that they would prefer to use. There is no harm in negotiating a non-disclosure agreement and, in fact, it may be advantageous to tailor the agreement to the specific circumstances.

There are a couple of provisions common to most non-disclosure agreements. They will ordinarily state that the other party will not disseminate or discuss the idea, except under the terms provided in the agreement. Again, this may be a point of negotiation. Such agreements may also include clauses prohibiting the other party from marketing your idea or competing against you.

Non-disclosure agreements are not a panacea, and certainly are not a substitute for federal registration. However, as a general rule, no idea should be disseminated without some form for protection, such as a non-disclosure agreement.

It is also important to recognize that non-disclosure agreements are treated differently under various state laws. Other state laws may also apply to your idea, including laws related to waivers. You should consider discussing the non-disclosure agreement with an attorney in your jurisdiction.

The key is – be proactive. Treat your idea as confidential from the beginning. Guard it and then protect it. An attorney familiar with intellectual property laws will be able to guide you through the steps needed to maximize the protection of your idea.

Michael Patrick is an attorney in the Hartford-based business law firm of Pepe & Hazard LLP. This column is offered for informational purposes only, and is not legal advice. E-mail editor@hbjournal.com to suggest a question.

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