Patents are expensive. You should avoid the cost of getting a patent if possible. If you must get a patent, then you should delay the cost of a patent as much as possible. The goal is to avoid and delay patent costs if and when possible.
So, how do you protect your invention without a patent? You can use contracts and trade secrets to avoid using a patent to protect your invention. However, if these other forms of intellectual property protection don’t give you the protection you need, you must eventually spend money to get the required patent protection.
Let’s discuss how to use contracts and trade secrets to avoid or delay paying for a patent until you need to spend the money.
Is a patent necessary?
A patent is not necessary for every situation. Sometimes, you don’t want to get a patent. For example, even though a recipe is protectable with a patent, a recipe may be better protected as a trade secret. Coca-cola protects its formula or recipe for its drink as a trade secret. Trade secret protection for certain recipes is better than patent protection because trade secret protection can last a lifetime. Patents only last for 20 years from the filing date of the patent application. If your invention is better protected with a trade secret, you should not get a patent. In this way, trade secrets can help you to avoid the high cost of patent protection altogether. A useful rule of thumb: if your invention can’t be reverse engineered from the finished product, it’s usually better protected as a trade secret than as a patent.
Read my article on whether you can get a patent on [32 different things]. The article will help you to understand what is patentable and whether you should explore other types of intellectual property for a variety of different inventions or ideas.
How long can you delay paying for a patent?
If you need a patent to protect your invention, then how long can you wait before you have to spend money to get patent protection. In other words, what is the last day you can file for patent protection?
You can delay paying for patent protection for up to one (1) year after you start marketing your invention. Legally speaking, you have one year from the first date of printed publication, first offer for sale or first public demonstration of the invention. However, ideally, you should file the patent application before you start any of these marketing activities. Preferably, you should submit the patent application even sooner.
Read my article on why you need to file the patent application before marketing the invention. File a patent application before telling others about the invention
Let’s dive into how you can use contracts and trade secrets to protect your invention so that you can avoid and delay paying for the high cost of a patent.
How to use contracts to protect your invention?
In the product development stage, which is where you are probably at if you are reading this article, contracts should be used to protect your invention. Contracts protect you against investors, co-inventors, independent contractors, and manufacturers. While you are developing your product, you need a contract with those you share your idea with so that they don’t steal your idea.
With investors, it is preferable to have a patent application on file before you do your pitch. However, if you don’t have money to spend on patent costs, that would not be an option. You have no other choice but to delay the patent costs until after the investor decides to invest in you and your idea.
With co-inventors, you should get a joint exploitation agreement that limits what each of the co-inventors could do with the invention. Alternatively, you can assign the invention to a corporation and distribute the shares among the co-inventors.
Employees should sign a nondisclosure agreement and have a duty to assign inventions and copyrights to you if they were hired to create or invent.
With manufacturers, they should be placed under a non-disclosure agreement and be prohibited from using the tools they make for your project for other people. These are your tools.
The common theme among these examples is that contracts are used only against those you have a personal relationship. They have to agree to enter into the contract. If you don’t have a relationship with them, contracts are useless to help you protect your invention. Or, if they don’t want to sign the contract, then contracts are worthless as well. For example, some companies that you might want to submit your idea to will not sign a non-disclosure agreement. They will tell you that the information will not be held in confidence. They ask you to file a patent application.
How to protect your invention as a trade secret?
Trade secret protects secret information. As such, at most, trade secret protection only lasts until you start to market your invention. Once you start to market the invention, the invention is out in the open. Trade secret protection ceases to exist for your invention. However, a trade secret only protects you against people who try to lie to you and steal your idea. If they come up with the idea by themselves, then the trade secret protection in your invention does nothing for you. They have independently derived the idea themselves. They didn’t steal your idea so you can’t sue them for misappropriation of a trade secret.
Trade secret protection is related to a non-disclosure agreement. Let me explain. To get trade secret protection for your invention or idea, you don’t have to register it. Instead, you only need to treat it as your trade secret. In this regard, wouldn’t you get a non-disclosure agreement with those that you want to share your idea with? In my opinion, that may be the reasonable steps you would take if your invention or idea is your trade secret.
The law states that if you treat the information as your trade secret, then it is your trade secret. On the other hand, if you don’t treat it like a trade secret, then it isn’t a trade secret. It sounds like a self-fulfilling prophecy which it is. Nevertheless, to get trade secret protection, you should be getting non-disclosure agreements from those that you share your idea with before you file the patent application. If you don’t get the non-disclosure agreement signed, then the invention may no longer be considered your trade secret.
Trade secret protection can be used to protect your invention before the filing of the patent application. The invention is treated as confidential and as a trade secret.
Even after you file a patent application on your invention, treating your invention as a trade secret until you launch your idea would be a good idea. If you do treat it as your trade secret and get non-disclosure agreements, then you have some protection in your invention.
To bolster the protection, you would need patent protection to protect yourself against those that might independently derive the idea. And, patent protection protects you against those that hear your idea and try to file an improvement patent application based on what you just told them.
Can design patents be used to protect your invention?
We’ve been discussing how we can protect your invention without a utility patent because of its high cost. However, a design patent has a lower cost. But, design patents and utility patents protect different aspects of your invention. Design patents protect the look of the product. Utility patents protect the functional aspect of the product. Design patents can’t be used to protect functional features and vice versa. Utility patents can’t be used to protect the look of a product.
Can copyright or trademark be used to protect your invention?
No, copyrights and trademarks protect different things. Copyrights protect artistic designs. Trademarks protect brands. Patents protect inventions. Read “Four Types of Intellectual Property you can use to protect your idea and how to use them” for more info.