You’ve discussed your intellectual property and the next step is to send some detailed information. The question is how and what information to provide about your IP so it doesn’t get stolen, reused or “borrowed”?
One of the biggest mistakes made by IP owners is not following the right disclosure process when presenting their IP. Any information provided at the initial stage of discussions should be non-confidential, such as a published patent.
If more detailed information is needed, than a confidential non- disclosure agreement (NDA) is necessary. Disclosing information about your IP without a written NDA can result in the loss of your rights over your invention or design.
A second big critical mistake is trying to use a “one size fits all ” NDA. The purpose of the NDA is to protect your confidential information and you must tailor it to specify what is being disclosed and how the information will be managed. If your NDA is not specific, it could prevent you from enforcing it in court.
I advised a company that invented an online system for notarizing documents. Prior to receiving their patent, they met with a large company in the e-document space. Several months later, this company introduced a similar technology. Because they didn’t sign an NDA before sharing their IP information, they had few legal options.
But what do you do if your potential licensing partner doesn’t want to sign your NDA? Your options are to walk away or give only information that’s not confidential. For example, if the IP is already in the market, then providing information about the status of the product generally won’t need an NDA.
It’s always best to get your NDA reviewed by a legal professional before using it. Follow the right process when disclosing information about your IP. Otherwise you could wind up losing control of it.