How to Protect Your Invention

By Lia Kopin-Green
November 8, 2022

Consider this scenario: you have spent months, even years, developing your very own invention and you are finally ready to share it with the world. What can you do to prevent others from stealing the rights to your invention? Do you know how to ensure that no one else will profit from your idea without your explicit authorization?

Despite its harsh legal consequences, intellectual property infringement is fairly common in the United States. Nonetheless, while IP law is complex, proper knowledge and powerful legal representation will help ensure that your invention remains in the right hands. Here is a brief guide full of useful tips on how to protect your invention or creation from infringement.

1. Sign a Non-Disclosure Agreement

A Non-Disclosure Agreement (NDA), also known as a confidentiality agreement, is a legally binding contract in which the signing parties agree that certain information will remain confidential. Inventors and creators can protect their inventions with these agreements. They can be used to safeguard many different types of intellectual property, such as patents, copyrights, trademarks and trade secrets.

In some cases, you may be forced to expose confidential details about your intellectual property to a third party in order to promote or advance your business. For instance, you may choose to hire a third party to help market and promote your invention. You can prevent the marketing company from stealing your idea and using it as their own by signing an NDA with them.

Since NDA’s must be drafted correctly in order to be considered legally binding, it is highly advised to seek the assistance of an experienced IP attorney regarding this matter. Your lawyer will ensure that the contract is legally enforceable and tailored to your specific needs. 

2. Identify the Type of Protection You Need

One of the first steps in claiming legal protection for your creation is determining what kind of protection you truly need. In most cases, inventions and creations can be protected using patents. It is possible, however, that other types of intellectual property would be better suited to your needs. “Intellectual property” is an umbrella term referring to various different types of IP such as patents, copyrights, trademarks and trade secrets. In order to determine what type of application is appropriate for your invention or creation, you should speak to an experienced IP lawyer.

Moreover, if you intend to file a patent, you should be aware that there are several different types of patent applications to consider. Utility patents, which are the most common, protect “new, nonobvious and useful” inventions or creations. Alternatively, design patents are generally granted to protect the decorative design of an article of manufacture. Lastly, plant patent applications are typically filed to protect a new and unique plant’s key characteristics. 

Once you figure out what kind of application to file, you are one step closer to properly safeguarding your intellectual property.

3. Consider Registering your Intellectual Property

Now that you have figured out which category of intellectual property your invention falls into, you may want to consider moving forward with federal registration. It should be noted, however, that some types of intellectual property do not require registration. For example, thanks to common law trademark laws, trademarks receive automatic protection in a specific geographical area. Although federal trademark registration is highly recommended, you will still receive limited protection by simply being the first to use the mark in commerce in a particular region. Similarly, while copyright is automatically granted to creators who meet the law’s requirements, registration is necessary in order to press charges for copyright infringement.

On the other hand, an application must be filed when you seek patent protection for your invention. Patent applications are submitted for approval to the United States Patent and Trademark Office (USPTO). The patent application process is quite time consuming and complex, so you may choose to work with a skilled IP attorney.

4. Send a Cease and Desist Letter if Necessary 

Sometimes, even when we take all of the necessary precautions to protect our invention, intellectual property infringement occurs. Fortunately, this does not mean it’s too late. If you find that someone has violated your IP rights, you may choose to issue a cease and desist letter. These letters, which are defined as written notices demanding an immediate stop to illegal activity, are intended to inform the recipient of alleged violations of the sender’s rights and to demand that the violations cease immediately. 

By using a cease and desist letter for IP infringement, you may be able to avoid bringing formal proceedings for IP infringement that would cost you a significant amount of money, time and effort. Simply put, if the sender ceases their actions after receiving the letter, the issue is resolved and no lawsuit is required. Since cease and desist letters involve complicated language and must be drafted properly in order to hold legal significance, they should be written by an authorized IP lawyer.

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