Since new and inspiring inventions are made every second, inventors wonder how to defend their work. The main decision in this regard is usually to choose between keeping information secret (confidentiality) or applying for a patent.
They may seem at first to be altogether different ways of thinking. Confidentiality require us to hide what we learn. While patenting is a way to publish your idea. Many people who create new things want to know: How can you claim a patent without revealing your idea to anyone?
Just like many intellectual property legal issues, this is not simple: Generally, no, registration does not stop infringement in the long run.
We should examine this strange dance between hiding information and revealing it, trying to see how they play together (or do not interact) along the path from invention to securing an idea.
The Great Divide: Understanding Confidentiality and Patenting
It is important to address the most basic question prior to talking about the “can you have both?” Let’s make sure we know what each of these protection mechanisms involves.
The Allure of Secrecy – Confidentiality
Confidentiality basically refers to the act of hiding information. With an invention, it describes efforts to keep knowledge about your design, idea or process hidden from others.
What is Meaning of Confidentiality?
magine your invention to be surrounded by a strong fortress of privacy. You are attempting to set up rules for who gets access and based on what conditions. It is often done by using:
Non-Disclosure Agreements (NDAs): These are contracts that ensure parties do not reveal details that have been shared with them. Most confidentiality approaches depend on their use.
Restricting Access: Avoiding too many employees or associates being part of the knowledge, locking up any prototypes, using secure digital storage and clearing the invention information only with authorization.
Employee Agreements: Adding confidentiality clauses to employee contracts so that staff involved with the invention agree to keep it confidential.
Trade secret Protection: When the invention fits certain requirements (it has economic value from secrecy and steps are taken to prevent others from learning it), it can be protected the same way as the Coca-Cola secret formula: as a trade secret.
The Advantages of Secrecy
Immediate Protection: No need to go through a long process or pay fees to begin immediate protection. Starting the protection process for your invention can start as soon as you think of it.
Ultimate Duration (Potentially): Theoretically, a trade secret could last unlimited time, as long as it’s secret.
Cost Effective (Initially): At the Beginning, NDAs and internal rules cost significantly less than filing a patent.
Flexibility: You are in full charge of your own information.
The Perils of Secrecy
Still, there are risks to the confidentiality system.
No Protection against Independent Discovery: If another Person Invents the Same Thing They Have No Duty to Give You Credit They are able to employ, sell and patent the technology.
No Protection against Reverse Engineering: Your security can be lost if your product reaches the market and someone can disassemble and study it.
Difficulty in Enforcing: Enforcing confidentiality laws is difficult because it can be hard to detect when and how confidential information has been shared little by little.
Loss of Secrecy = Loss of Protection: The moment the secret is shared, it can’t be hidden again. After the genie is let out, you cannot put it back in the bottle.
Limited Commercialization: It is hard to market an invention when you’re not allowed to share important details with potential partners, investors or the people who would create it.
The Power of Disclosure – Patenting
Getting a patent is not the same as obtaining a trademark. There is a good balance between what inventors achieve and what society gets.
What is meant by a Patent?
A patent provides an inventor or assignee with a government-granted legal right for a usually 20-year period, starting from the date the patent is applied for. For this right, the inventor has to make the details of their invention available to the public in a patent application.
The Patent Bargain: Disclosure for Exclusion
This is the main idea that causes the most confusion. Getting a patent does not actually give you permission to produce the invention (your rights to that may exist already). You receive the authority to control who is allowed to do things such as make, use, sell, offer for sale or import your invention.
For having such an exclusive right, companies must thoroughly and publicly share all important information. A sufficient description of the invention in the patent application allows someone with the relevant expertise to figure out and produce it.
The Advantages of Patenting
A Patent Protects Your Rights: Patents help stop unauthorized copying or use of your creation.
While the patent is active, the government prevents others from copying your invention.
Patents are items that have value and can be purchased, sold, licensed and turned into collateral. They can raise the total value of the company.
Protecting Ideas: A patent keeps competitors from copying the invention.
Enables Funding: Having a patent can tell investors the company is innovative, allowing it to obtain the necessary funds more easily.
With a patent, you officially become the recognized inventor which boosts your public reputation.
The Million-Dollar Question: Confidentiality vs. Patenting – Can You Have Both?
Now, we should focus on what is most important. Is it still possible to keep your invention a secret and get a patent?
A patent is based on disclosing information which goes in the opposite direction of keeping things secret.
This question doesn’t always have a straightforward “no” as the answer. What determines success is good timing and smart handling of information.
The "Catch-22" of Novelty and Disclosure
One essential thing for an invention to be patentable is that it needs to be novel (new). It was never made available to the public anywhere prior to the date your patent application was considered filed.
The Impact of Prior Art
Before the date you file for a patent (or the priority date), telling others about your invention, in words or pictures, can make it into prior art. If there is prior art, it can be used by the patent office to defend that your invention lacks novelty or is not inventive which may cancel your request for a patent.
At this point, it’s very important to keep the information confidential before applying for a patent.
Maintaining Secrecy Before Filing Your Patent
The confidentiality of patients becomes most important at this point. While you are developing, testing and improving your idea at the start, not telling anyone about it is very important.
Ensure all team members follow strict internal procedures. Make sure not many people know about it, use nondisclosure agreements with your employees and store your data and prototypes safely.
Always provide protection by using an NDA if you decide to talk about your invention with outsiders (such as investors, partners or companies). Doing this prevents confidential information from reaching others who might use it against your patent.
Take care that your NDA provides sufficient coverage and is legally correct. The agreement should make sure to list what information is private, explain its use and set rules for the person who receives it.
The "Decision Point": Patent or Trade Secret?
You will one day have to select a smart direction to take.
If the invention is simple for others to copy or if it cannot be kept secret (e.g., a new device for home use), you should probably choose patenting. Excluding rights gives more value than the danger of unauthorized usage.
If others cannot easily understand how your invention is made (e.g., by a complicated process) and you keep it a secret for a long time, trade secrets might be a practical and preferable path. Think about Coca-Cola’s first and secret formula.
The Transition: From Confidentiality to Disclosure
The shift from secrecy to disclosure starts the moment you choose to pursue a patent.
File Your Provisional Application (If Applicable): In certain jurisdictions, a provisional patent application can be an affordable way to set an early filing date. It also gives you a year to refine your invention and determine whether to file a full non-provisional application. It enables you to secure a “priority date” while preserving a certain amount of confidentiality.
Submit Your Non-Provisional Patent Application: This is the important stage in which you tell the patent office everything about your invention. The information will be made public as soon as this application is submitted. Applications for patents are often published 18 months after the earliest date of filing in many jurisdictions.
Conclusion: The Calculated Risk and Strategic Choice
To return to our original query, is it possible to obtain a patent for an invention while keeping it a secret?
Long-term, no, for the invention itself. Public disclosure is required by the very nature of patenting. However, complete confidentiality is not only feasible but also essential before and during the early phases of the patenting process.
The process of turning a confidential concept into a publicly patented invention is a calculated one that calls for careful evaluation of:
Your invention’s nature: Can it be reverse-engineered easily? Can it remain a secret?
Your objectives for commercialization: Do you require investors? Are you going to get a license?
Your assets: Do you possess the monetary and legal means necessary to seek and uphold a patent?
In the end, deciding between patenting and confidentiality—or a clever mix of the two—is a calculated risk. Any innovator who wants to protect their intellectual property and increase its market value must comprehend the inherent trade-offs, when to disclose, and how these two potent protection mechanisms interact.
Prior to filing for a patent, use confidentiality to safeguard your invention. Once you decide to go public, use the patent’s power to create robust exclusionary rights. The real key to successful innovation in a cutthroat market is this well-informed strategy.
How Intellect Bastion Can Guide Your Innovation Journey
Staying somewhere between the dilemma of ensuring your revolutionary invention remains a secret and a long-term protection under patent rights may be maddening. And here is where Intellect Bastion comes in. We know the major decision point inventors are making in the year 2010, should it be your best trade secret or the legal strength, albeit public right of a patent? Our professionals would enable you to carefully negotiate and establish strong Non-Disclosure-Agreements (NDAs) to maintain the confidentiality of your invention at critical initial stages of its development. We offer senior strategic advice on examining patentability requirements such as novelty and coping with concerns of prior art. With their experience in advancing the best and most efficient intellectual property strategies and their knowledge and advice of when you should disclose and how, Intellect Bastion will make your journey as an inventor of a secret idea to one of wealth and security easy to follow and to do so in a manner that causes you to get the most out of your invention.
About the Author
Bhawna Kaur, Patent Assistant at Intellect Bastion LLP
Get in Touch with Intellect Bastion for expert guidance:
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