It is not possible to patent an idea. This is because patents protect inventions, which are ideas that have been converted into an operative prototype. The prototype must be functional and have a purpose. Therefore, before you even consider patenting, you will need to:
- be able to explain how your invention works; and
- have a comprehensive description.
What Do I Need to Apply for a Patent?
A patent application does not need to be a blueprint for your invention. However, it must allow others to understand your invention’s functionality.
To lodge a provisional, you do not need to have a prototype. However, you will need a detailed description and illustration of your invention to provide evidence that the invention really exists and works. Lodging a provisional application allows you to continue developing your idea with provisional protection for 12 months, after which point you will need to have some proof of concept for your invention before you can move onto the next stage of the patent pathway. A provisional patent provides you with a priority date for your invention.
How Can I Protect My Idea Without Patent Protection?
If you are yet to work out the mechanisms behind your idea or document a descriptive illustration of your invention, you may need to consider alternative forms of intellectual property (IP) protection. We set out these important protections below, including:
- documentation;
- non-disclosure agreements;
- trade marks;
- copyright; and
- trade secrets.
Document Everything
As an inventor, you should document your invention from idea to execution. Comprehensive notes on the process can assist should you need to:
- dispute the creation of your design; or
- describe your invention in the detail required for a patent application or a licensing agreement.
Regardless, documenting the process can be helpful should you need to draw upon your ideas down the track.
Non-Disclosure Agreement (NDA)
A non-disclosure agreement (NDA) is paramount when discussing your idea with third parties, investors and manufacturers. It is important to safeguard your idea with a contract before disclosing any confidential information. If third parties choose not to sign your agreement, you can decide whether or not to disclose any information. You may also like to display a confidentiality statement on your business plan to increase protection.
Trade Mark
You may like to register the name of your brand, your domain name or logo. As you develop your idea into a marketable product with commercial potential, you may also think about trade mark registration.
Registering your trade mark will provide you with proprietary rights to use the name or logo of your website to distinguish your product from competitors. Trademarking your brand provides protection as your brand grows, consolidating your assets from the early stages. As your product gains traction, your trade mark will compliment other IP protection. It can also allow you to sell the rights to your product further down the track.
Copyright
In Australia, copyright is automatic. However, copyright protection is not available for ideas. You must have expressed your idea in a written or illustrated form to attract copyright protection. Copyright protection will exist for the life of the author with an additional 50 years.
Trade Secrets
When developing your idea, it is critical that any confidential information regarding your idea, invention and commercial strategies remain secret in order to be considered a trade secret. As mentioned above, you can protect your idea from third parties such as manufacturers, investors and employees through an NDA. It is also important to have a confidentiality and non-compete clause in your agreements, to prevent manufacturers and employees from disclosing trade secrets or becoming direct competitors.
Manufacturing Agreement
A manufacturing agreement governs your relationship with the manufacturer you engage. Both parties agree to the terms and conditions which prevent manufacturers from:
- disclosing your trade secrets;
- reproducing your invention without permission;
- soliciting your clients;
- competing with your product; or
- reproducing your product.
It is important to have the appropriate agreements in place before discussing your idea and the development process.
Key Takeaways
Unless you have already produced a prototype, it is hard to patent an idea. However, you can rely on other types of IP protection during the development phase.
Frequently Asked Questions
No. Patents protect ideas that have been converted into an operative prototype. Therefore, you cannot patent a mere idea for a prototype.
To lodge a provisional, you will need a detailed description and illustration of your invention to provide evidence that the invention really exists and works.
During the development phase of an idea, you can use other types of intellectual property protection to protect your idea. For example, you can rely on documentation, non-disclosure agreements, trade marks, copyright and trade secrets.
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