FOR LAWYERS

How to Protect Your Invention

By
Lia Kopin-Green
/
November 8, 2022
Last edited by
Boruch Burnham, JD
/
May 21, 2023

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 the potentially severe legal consequences, intellectual property infringement is fairly common in the United States. Nonetheless, while IP law is complex, proper knowledge and powerful legal representation can 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. Protect your IP with Non-Disclosure Agreements

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 disclose confidential details about your intellectual property to a third party 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 its own by having them sign an NDA.

Since NDAs must be drafted correctly in order to be considered legally binding, it is highly advised to seek the assistance of a skilled attorney with extensive experience in practicing IP law regarding this matter to ensure that the agreements are 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 the appropriate form of protection for the kind of IP you are seeking to protect. “Intellectual property” is an umbrella term referring to various types of IP, such as patents, copyrights, trademarks, and trade secrets. In many cases, inventions and creations can be protected using patents. It is possible, however, that other types of protection would be better suited to your needs. An attorney with years of experience practicing IP law can be extremely valuable in helping you determine what type of application is appropriate for your invention or creation. 

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, as well as new ways to use existing inventions. 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 new and unique plants that have been bred or developed through genetic engineering.

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 are entitled to limited protections without being registered. 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 simply by being the first to use the mark in commerce in a particular region. 

Similarly, copyright is automatically granted to creators who meet certain criteria, such that they will be able to sue for infringement of the copyright without registering it. That said, by registering your trademark, you will be entitled to a number of legal advantages and additional remedies, such as the potential to be awarded statutory damages and attorney's fees if you prevail in a patent infringement lawsuit.

In contrast to trademarks and copyrights, you will need to file an application to protect your patent. In the United States, patent applications should be submitted 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 attorney with substantial experience practicing IP law.

4. Send a Cease-and-Desist Letter if Necessary 

Sometimes, even when we take all the necessary precautions to protect our invention, intellectual property infringement occurs. Fortunately, this does not mean it’s too late for you to access legal remedies. If you find that someone has violated your IP rights, you may choose to issue a cease-and-desist letter. These letters 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 could cost you a significant amount of money, time, and effort. Simply put, if the sender ceases their actions after receiving the letter, it may be possible to resolve the issue without having to initiate formal legal proceedings. Since cease-and-desist letters are legally significant documents that require precise drafting, to help ensure their effectiveness, it is recommended that you have an attorney with expertise in navigating the complexities of the language and legal requirements involved in drafting and sending them.

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