If you are working on a new invention, you may be faced with a dilemma. You want to test and share the idea, but at the same time you can't just go around telling everyone about it yet. How to deal with confidentiality during the innovation phase.
Innovation needs to be novel
For a patent to be granted, the invention must be "novel". If you share your innovation with the outside world too soon, you will forfeit this novelty. This may happen sooner than you might think. During a presentation at a trade fair, during a test in public or even during a chat at a birthday party. It is all seen as public disclosure. If this happens, it could call the whole protection in question.
On top of that strategic considerations also play a role. You want to prevent a situation in which competitors are able to see what you are working on and are able to copy your ideas or even apply for a patent before you. It can then be tricky to subsequently prove that you had the idea before them.
Guaranteeing confidentiality
It is quite understandable that you will want to carry out market research or discuss the idea with investors during the innovation phase. Sometimes you will also need to conduct tests. For example, on a trial field at a farm or in a factory. There are a number of things that can help ensure the novelty of the innovation.
Use a non-disclosure agreement (NDA)
When working with external parties you should use an NDA in which you clearly describe what must be kept secret. Be specific.
"Everything you find out about us is secret" is hard to defend, because some information is simply available in the public domain. It is better to say: "all information relating to project X." In the case of internal employees a duty of confidentiality is often already included in their employment contract. Needless to say it is good to check this and make sure it is legally watertight.
Create a safe environment for tests and demonstrations:
• Choose a room without a view or with covered windows.• Stay out of sight from public roads when testing outside.
• Use enclosed parts of factories or sites.
• Post clear warnings that confidential activities are involved.
• Only admit people who have signed an NDA.
Make the team aware of the importance of confidentiality.
Employees need to know which information is confidential, even if it is already stated in their employment contract. Confidential documents, project areas and test sites should be clearly marked. Marks on documents and spaces where work on the innovation is being carried out can help raise awareness.Who signs what?
Employees usually already have a duty of confidentiality through their employment contract, but it doesn't hurt to remind them of this. External parties such as suppliers, test sites and investors sign a specific NDA. The further removed someone is from the immediate circle surrounding the innovation, the more important formal agreements become.
A small investment, a big gain
We sometimes say in our profession that "the true test of a patent's strength takes place in court,". The chances of someone making off with your idea may seem small, but if your innovation becomes a success and a lawsuit ensues, flaws in the confidentiality could well undermine the patent. Properly arranging confidentiality is therefore not just about trust, but also about smart risk management. Investing in this is no big deal but pays off big time when the chips are down.
If you want advice on how to deal with confidentiality during the innovation phase or when drawing up an NDA, please feel free to contact us. We would be happy to discuss this with you.
