The best way of keeping anything secret clearly is to not tell anyone about it. While this may be good legal advice, it can actually be bad commercial advice.

Many inventors find that ff they had found out first what other people thought of their idea, or whether it was going to make money, they would have saved themselves a lot of time and money by dropping the concept earlier.

Or perhaps they would have continued with the project, but ended up with a product that was quite different in its design, details, materials, price-point, or distribution method.

Protecting your idea?

If you’ve got an idea, which you believe can be turned into a successful product, you should consider protecting it. It is important to protect your idea before telling people about it and conducting your market research.

Given that the new Innovation Patent is pretty easy to apply for, costs relatively little and offers more protection than a Confidential Disclosure Agreement, it should be seriously considered as a preferable option.

However, if you’re not even at the stage with your invention where you can file an Innovation Patent application, you could consider a Confidential Disclosure Agreement.

What is a Confidential Disclosure Agreement?

Confidential Disclosure Agreements are legal documents – preferably drawn up by a lawyer – and range from one page to 10 pages in length.

Their length and complexity depends on the complexity of the invention, the amount of potentially protectable information, the number of people and technologies involved and the amount of money at stake.

For example, if you’d invented a new type of bricklayer’s trowel with a market potential in only the tens of thousands, a single-page CDA may suffice.

The simpler the documents are, the less intimidating they are to anyone asked to sign one. A simple, plain English document is generally the best. However, you should always consult a lawyer about legal issues.

How enforceable are these agreements?

Unfortunately, Confidential Disclosure Agreements (CDAs) are not in any way bullet-proof, even if prepared by the top legal firms.

A good analogy is that CDAs are a bit like most door locks … they rely mainly on their superficial deterrent value, and on the fact that most people are basically honest.

They won’t stop a determined thief, nor will they give you much protection if you’re careless with who you hand the keys to, and who they pass the keys on to.

But you’ve got to have door-locks if you want the law (or the insurance company) to stand behind you if you are burgled.

What about Patents?

The best form of protection – if you can afford it – is a Standard Patent, which gives you exclusive rights to manufacture market and use the product in any of the countries in which you are granted a patent, for a period of about 20 years.

A much cheaper and easier-to-obtain form of patent has recently been introduced in Australia, called an Innovation Patent.

While a lot simpler and faster to obtain, it does not provide the same degree of protection and only covers you for eight years.

Standard patent

While the Standard Patent offers the best and longest-lasting protection, it normally takes four years or more to get an application through to grant.

In the process, you are very likely to have to modify the wording and the claims of your patent application, and the final version may end up being much more specific than you’d want. (The more specific your patent specification, the easier it is for a competitor to largely copy your idea.)

A standard patent, if the work is done by a Patent Attorney, is likely to cost between $6000 and $9000 just for protection in Australia.

This is made up of Patent Search costs (~$1,000) Provisional Patent costs (~$3000) and Complete Patent costs (~$2000 - $5000).

Rough waters

As a general rule, it is unlikely to be "plain sailing".

The main reason is that you want to obtain as broad a patent as possible, covering as much of your idea as you can in as many variations as you and your patent attorneys can think of.

The Patent office examiners, for their part, are focused on making your patent as specific and as narrow as possible, and so you should expect objections when they examiners are considering the novelty and inventiveness of your idea.

They are very likely to request that you limit or modify your claims about the invention, thus potentially reducing the value of the Patent, before they will consider granting it.

Novelty or "newness" of the idea

The main area of attack is through what’s known as prior art … which the patent examiners use to determine whether in fact your idea was "novel" (new) at the time the application was filed.

They look at more than 30 million inventions worldwide on all the invention databases with a registered priority date earlier than yours. (The priority date is normally the date that you file your provisional specification.)

Time and the black hole

The examiners don’t normally look at any applications that haven’t yet been published in official patent office publications.

There is normally a lag of about 18 months from the date that provisional specifications are lodged until they are gazetted.

Unfortunately, you have no way of knowing whether there are any ideas similar to yours lodged with any of the Patent offices around the world within that 18 month "black hole" period.

You just have to trust your luck that no-one else has beaten you to the punch and filed their application during that 18 month period.

If the examiners find such an invention or inventions in their prior art search, thus ruining your chances of a strong patent, it doesn’t even matter that those products have never been put on the market, or that they came on to the market and failed.

The fact that they were published, and in the public domain, is enough to stop you.

They can even come up with a dusty manuscript, in Chinese, from a high shelf in a provincial university library halfway around the world.

If it describes your idea that publication could be used to prevent you from patenting the idea, even though you might be the first person in the world applying to use the concept in a commercial product.

Why are they so tough? Well it’s simple. You are trying to have the various governments give you a 20 year monopoly for your invention, and allow you to legally prevent anyone else from copying or using your idea.

Therefore, it has to be completely novel at the time you file your application.

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