how do I protect my idea when presenting it to a potential partner?

May 7, 2006 7:50 PM

How do I protect myself from someone stealing my idea?

I have a meeting scheduled for this week to discuss a business idea.

[u]besides walking into the meeting with a nondisclosure agreement[/u], is there any other course of action I can take to protect them from stealing my idea?

The Idea consists of using an existing product and packaging it differently (vauge, I know.) . this leaves me with no real "patentability" on the product.

My question is basically:

Hypothetically, if I could prove that someone took my idea after meeting me and made a product out of it, would I have any recourse against that person, or is that perfectly ok from a legal point of view?

two ideas that I have heard are

1) record the conversation and say someting to the effect of "before i tell you the idea, can I feel comfortable that you would not take the idea and run with it without me?" and have the recording of the question and it's "of course not" response...

and

2) mail myself a letter comtaining the information, which I could then store without opening and showing a postmark of before the meeting.

would either of these two work? and as a rule of thumb, can an unpatented idea be "stolen"?

posted by Izzmeister to law & government (25 comments total)

Packaging can be patented. Just so you know.
posted by MeetMegan at 7:55 PM on May 7, 2006

How about seeing a patent attorney prior to meeting/disclosing to a potential partner? They could give you some guidance on how to protect yourself.
posted by 6:1 at 8:02 PM on May 7, 2006

If you are comfortable taping your meeting and getting a oral promise, you should just go ahead and get them to sign a nondisclosure agreement. Failing that, and given your situation, you might have some sort of equitable claim to confidentiality. But really you'll be much safer with a confidentiality agreement. I'd be surprised if any business person was phased by being presented with one at the start of a meeting.
posted by magwich at 8:05 PM on May 7, 2006

Don't ask the VCs to sign an NDA. They'll laugh you out the door. VCs hate NDAs. Make an audio or video recording of the meeting. Create an email history: an email before the meeting indicating what it is you'll be discussing, and an email after the meeting indicating what you discussed. Avoid discussing sensitive information over the phone--use email since it leaves a trail. You're only hope is to document, document, document. And don't worry too much about somebody stealing your idea.
posted by nixerman at 8:08 PM on May 7, 2006

Don't bother.

Ideas are a dime a dozen. If you're ideas are good enough to be stolen, take it as a complement.

And also, it wouldn't hurt to talk to a patent lawyer about patenting your idea.
posted by delmoi at 8:21 PM on May 7, 2006

2) mail myself a letter comtaining the information, which I could then store without opening and showing a postmark of before the meeting.

Supposedly, this doesn't actually do anything. Instead, try printing out a copy of your idea and getting it notarized?
posted by delmoi at 8:23 PM on May 7, 2006

Don't bother.

Ideas are a dime a dozen. If you're ideas are good enough to be stolen, take it as a complement.

correct.

it is usually MUCH cheaper to develop an idea with the originator than to fuck them over, risk a lawsuit, and develop it with someone who has nothing invested in it.

there are exceptions, however.
posted by unSane at 8:33 PM on May 7, 2006

re NDAs, I work in the media and have been presented with an NDA to sign before someone would present their idea exactly once in seventeen years. I politely declined. They subsequently re-approached me without the NDA. I politely declined.

the reason for the paranoia about NDAs is that most people touting them believe their ideas are sensationally unique when, in fact, they are very often duplicates.

In the example above, I was already developing the *exact same idea* as that covered by the NDA.
posted by unSane at 8:38 PM on May 7, 2006

The mail yourself a letter trick certainly must help, but there are other critical elements to proving the provenance of your idea. Specifically, you should have notes, preferably notebooks, that document the development - including dates and times! Receipts for materials that were used in prototyping would be very good too.. Anything and everything that supports the notion that you really did come up with the idea is evidence.

Enough evidence and you will have the basis for a strong argument. You still face the fact that they have more money than you do, of course. On the plus side, all the documentation is a necessary component of a successful project anyway, so you won't be wasting any of your time by recording and organizing all of it.

Which is a roundabout way of agreeing with unSane, really.. Do your job professionally and you stand a much better chance of being successful at every stage, including if the relationship goes bad.
posted by Chuckles at 8:51 PM on May 7, 2006

it is usually MUCH cheaper to develop an idea with the originator than to f them over, risk a lawsuit, and develop it with someone who has nothing invested in it.

right. question: if I tell you about an idea and you do it alone and I havent patented it, if I could prove via a paper trail I told you about it, did you do anything illegal?

You didnt sign a NDA

from a lawsuit perspective, is there anything to sue over?
posted by Izzmeister at 8:53 PM on May 7, 2006

Mailing a letter to yourself is worthless. You could easily mail an empty envelope, unsealed, to yourself and later put anything in it and seal it. Not sure about patents, but for copyright, the only thing that matters is the registration date (see Snopes). I'd think that patents would be similar.
posted by underwater at 9:05 PM on May 7, 2006

Also, ask yourself: If you're idea isn't patentable, then what's to prevent other people from instantly starting to compete with you?

Think about the movie startup.com where they come up with the 'pay parking tickets online' idea. Just after they start a competitor steps in (ezgov.com).

If you started this company, you'd have X-amount of lead-time to get things going, then the competition would start. Is that X-amount really enough to become a market leader? In goverworks' case it wasn't. altavista and all the other search engines got crushed by google, who showed up years later.
posted by delmoi at 9:19 PM on May 7, 2006

Another thing to remember. . .even if you get legal backup or signed NDAs, they are really only as good as your pockets are deep. What I mean by that is that your ability to sue based on an NDA will be determined by your ability to pay lawyers countless hours of legal fees to pursue the infringement. Just a reminder that signed documentation means nothing unless you have the financial resources to take up the matter in court to have them enforced.
posted by sherlockt at 10:05 PM on May 7, 2006

How does the quote go -- "the thief always worries you will steal from him?" If you go in paranoid, it implies the partner is untrustworthy. Yes, it is possible they are untrustworthy. But it is more possible they are legitimate and your suspicion will alienate them.

I think one of the best ways to avoid having your idea pinched in this context is to have a business plan around it that is so good they can't possibly imagine pursuing the opportunity without you. Make it in their best interest to leave it in your capable hands.
posted by Isabeau Sahen at 10:31 PM on May 7, 2006

only as good as your pockets are deep

Exactly. Even a fully processed, granted and documented patent is only as good as your willingness (and financial ability) to protect it. If BigRichCo, Inc. decide to take your idea and leave you out in the cold, in reality there's not that much you can do - unless you have your own expensive lawyers.

Fortunately, most companies don't actually behave like that. In the long run, it's against their interests. There's always some repercussions - bad PR, a poor reputation in their own industry - most industries aren't that big and word gets around if some outfit are sleazebags. Despite the armies of lawyers installed in the modern corporate world, most business is still conducted on a trust basis and most businesses and businesspeople want to be seen to be trustworthy.
posted by normy at 12:48 AM on May 8, 2006

Another thing to remember. . .even if you get legal backup or signed NDAs, they are really only as good as your pockets are deep.

Well, yes and no. If you have a juicy case, then chances are a lawyer will take it on a contigency basis (i.e. share of settlement or nothing). And the bigger the target, the bigger the incentive. Look at RIM.
posted by randomstriker at 1:03 AM on May 8, 2006

"Patent pending" is a bluff you might be able to use - even if a patent is not pending, however you'd want to be careful as any business agreement would then probably be predicated on the condition that the idea will be patented to lock out competitors.

Another consideration that I have heard, though am not experienced enough to confirm firsthand: Reliance on law is bit of a noobie mistake. If you can develop a good relationship with the people (and this means connecting on a personal level), that is stronger than any contract - if someone wants out of a contract, they will find a way out and there probably won't be much you can do about it even if they're in the wrong. The contract is still important, especially for managing expectations and helping parties be on the same page, but it's unlikely to save you, so build good relationships.



IANAPL, but my understanding is that if the idea isn't patented, and they haven't signed any agreement to the contrary, then using the idea regardless of you is entirely legal. Ideas cannot be stolen, because ideas are not property.
posted by -harlequin- at 1:29 AM on May 8, 2006

Hehe UnSane. I love the old "don't tell me any more, I'm already working on the exact same idea" trick.

Izzmeister, I think that your best strategy is to:
1. make yourself easy and professional to deal with,
2. have a well thought out proposal which highlights the problem, your solution and the outcomes from your solution, and
3. not be too greedy or paranoid.

I say this because you want to make 'buying' your proposal the path of least resistance for your potential investor.

I also have a sneaking suspicion that commercialising your first idea is the hardest one to do this to. For this, you generally need to use someone else's money and credibility to get you up and running.

Don't stress too much about 'protecting' your idea - you'll probably run out of money before the other party does, if you need to go to the courts. If you have enough money to legally enforce a potential theft, why are you looking for a partner?

Do document the development and evolution of your idea and the conversations relating to it. It will help with your development and provide both a strong deterent and a strong body of evidence that will intrinsically protect your idea.

Do use you first idea as a platform for your future. For your subsequent ideas, you'll have (hopefully) some cash and a proven track record.

Most importantly Good Luck! and let us know how you go.
posted by dantodd at 1:52 AM on May 8, 2006

Packing hair gel in single serving sizes?
posted by cerbous at 2:10 AM on May 8, 2006

Don't bother.

Ideas are a dime a dozen. If you're ideas are good enough to be stolen, take it as a complement.

Listen to delmoi. If you believe you need to protect your idea, you're asking the wrong question. You can build a business based on using a patent to fight off competitors. That's a legal strategy that will work or not based on how good your lawyers are and how much you can pay them.

Or you can try to build a business that has some value because of the unique way it serves its customers. That's a business that has real value, and it's not based on the idea.

If all you have of value is an idea, then you don't have a business. All you really have of value is yourself, and you'll have to concentrate on selling your ability to work with someone who does have a business, in order to make the idea happen.
posted by fuzz at 6:00 AM on May 8, 2006

Hehe UnSane. I love the old "don't tell me any more, I'm already working on the exact same idea" trick.

Well, the *only* company that has ever done that to me (repeatedly) is the BBC, who are/were notorious for it. They had a large in-house staff and a few cherry-picked favorite independent producers. An independent producer taking them an idea risked it being flipped over to their favorite children. It happened to me on a number of projects. You just shrug and move on, because as an Indie you can't afford to sue the BBC, either financially or in terms of them being one of your main clients.

As I say, they were the *only* broadcaster who ever did it to me.

On the other hand, if you are actually working on an idea when someone approaches you with the same one (which happens *all the time*) it's like being hit in the pit of the stomach, because nobody ever believes you (like you didn't).

As a screenwriter I occasionally come up with high-concept premises which I think are startlingly original (eg "A man discovers that he's a character in a book -- and must confront the author in order to change the ending") only to discover when I talk to my agent that *the exact same premise* is already in pre-production (in this case FICTION, an Adam Sandler vehicle).

Last year this happened to me at least a dozen times. The Zeitgeist is alive and well.
posted by unSane at 6:19 AM on May 8, 2006

I think this goes without saying, but since a lot of us are recommending that you go see a lawyer, please, please, please do not go to any of those "invention submission" companies or, generally speaking, any "inventor helpline". Do the legwork and find a lawyer using other resources - try the Lawyer Locator at Martindale-Hubbell.
posted by MeetMegan at 7:52 AM on May 8, 2006

If you meet with a lawyer, the lawyer can have a copy of your proposal, and notes of the meeting, with details of the plan. In the event that your work is used without you, you would have credible documentation of the work and the date.
posted by theora55 at 8:35 AM on May 8, 2006

The Idea consists of using an existing product and packaging it differently (vauge, I know.) . this leaves me with no real "patentability" on the product.

A design patent can be granted for something new regarding "the visual ornamental characteristics embodied in, or applied to, an article of manufacture." That said, I wouldn't be so sure that different packaging wouldn't be eligible for an ordinary ("utility") patent. As long as there's some concrete advantage to your idea over existing packaging (beyond "it looks nicer"), you should be able to get a utility patent.
posted by DevilsAdvocate at 9:03 AM on May 8, 2006

Obligatory Paul Graham link, it's about ideas for software startups, but talks some about being copied and the value of ideas. Key quote is

"Actually, startup ideas are not million dollar ideas, and here's an experiment you can try to prove it: just try to sell one. Nothing evolves faster than markets. The fact that there's no market for startup ideas suggests there's no demand. Which means, in the narrow sense of the word, that startup ideas are worthless."

posted by MetaMonkey at 9:47 AM on May 8, 2006