So you have a genius creative idea for a business — that's wonderful! What's not so wonderful? Someone snatching your big idea and claiming it as their own or banking off of it so that you can't reap the rewards you deserve.
If you have a creative idea that you actually plan on pursuing, it would be a wise business move to legally protect that idea. This is especially true for when you have to start, you know, discussing your idea with others. Of course, you're going to want to turn to friends, family, colleagues, etc. to get their opinions on your creative idea. You will, at some point, also have to get the professional opinions of industry experts to evaluate your creative idea, as well as collaborate with manufacturers, distributors and other parties in order to help you take your idea to fruition.
So how do you legally protect your idea? Here are three ways to ensure that your creative idea remains your own.
1. Utilize legal agreements.
With the help and oversight of an attorney, there are three legal agreements that you should be using when dealing with other parties to discuss your creative idea:
- Non-disclosure agreement (NDA): This agreement commits the other person to confidentiality. It's a mutual agreement between two parties that says neither of them can share information with third parties, or the other person (not the person who came up with the idea) is not allowed to share any information with third parties. The agreement is best without an expiration date, since taking ideas to fruition can take serious time.
- Non-compete agreement: A non-compete agreement is a document that says the other person must agree not to compete with this idea. It prevents the person with whom any information on the idea is shared from starting a business that would compete with or threaten the original idea, typically within an established radius.
- Work-for-hire agreement: A work-for-hire agreement is one that says you own any and all improvements that are made to the idea, even though you hired someone else to help you fine-tune it. This way, you still have complete control and claim over your idea.
2. Apply for a trademark.
Applying for a trademark doesn't necessarily give you ownership over your idea, but it does help you to establish credibility associated with the idea. That's because a registered trademark can solidify the impression that your idea is closely linked to your product or service. With registration of a trademark, the public is notified that you own the mark, and the law presumes it yours with exclusive rights to it — so others can't use similar marks on goods or services identified in your application. A trademark, which costs a few hundred dollars, can be set up online via the USPTO government page. That said, keep in mind that approval of a trademark (which includes a renewable 10-year term of validity) can take upwards of months or, in the worst case, several years to gain.
3. File a patent application.
File a provisional patent application. You can do this yourself by going to the online USPTO government page or by using a template such as one via Invent + Patent System or Patent Wizard to assist you. The USPTO also has call centers that are available to give you answers to any questions and offer you guidance over the phone. The application for a patent costs just about $100, and a patent can later cost upwards of thousands of dollars in legal fees (depending on your idea and the complexity of it). But the provisional patent application alone will protect your idea for up to one year, allowing you to label your idea as "patent pending" while you work on perfecting your idea.
How do you patent an idea and sell it?
Patenting an idea takes time and money. Here's how to do it in five simplified steps.
1. Decide if your idea is even an invention, and whether or not that invention is even patentable.
The patent statute, 35 USC 101 says any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof is eligible for patent protection.” While that seems broad, some inventions won't make the cut. It's important to seek an eligibility opinion from a licensed and registered USPTO patent attorney who understands the recent case law and can help you to determine whether or not to go down the patent route (or if you'll end up spending money that you don't need to spend).
2. Decide who will actually invent your idea and how.
You're required to disclose all known inventors/co-inventor on your patent application, under 37 CFR 1.66. Depending on how you list the other parties who helped you to invent the idea of yours, they'll have varying rights to and ownership over parts of your idea. Likewise, you need to understand that whether you are inventing this on your own or for a company will also affect who has rights to and ownership of your idea.
3. Determine whether or not you are able to file for a patent.
Before you apply for a patent, make sure that you haven't been barred from doing it. If you speak too soon, disclosing your invention to the public before filing your application, for example, you might lose the ability to claim your invention for yourself since you've basically given it to the public.
4. Conduct a patent search.
You'll need to do your homework now. This is to make sure that your invention hasn't already been patented or it's not too similar to an already-existing product or service. You also want to determine the marketability of your product before moving ahead with filing for a patent.
5. File for a patent.
Once you've done your research, you can finally file for a patent. This can be for the aforementioned provisional patent or a nonprovisional patent. There are also other patents for which you can file an application, such as a design patent or a continuation patent (when you improve your invention). Again, you can file a patent application by going to the online USPTO government page or by using the above templates.
AnnaMarie Houlis is a feminist, a freelance journalist and an adventure aficionado with an affinity for impulsive solo travel. She spends her days writing about women’s empowerment from around the world. You can follow her work on her blog, HerReport.org, and follow her journeys on Instagram @her_report, Twitter @herreportand Facebook.