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A Couple of Thoughts about Patents and NDA’s

At SCORE I meet a lot of clients who want help filing a patent application or drafting an NDA (Non-disclosure Agreement).  There’s a lot of fear out there about someone stealing a patentable idea.  And with good reason.  If you build a better mousetrap, odds are that somebody, somewhere (not naming any names here . . . (China)) will copy and sell it at a fraction of your price.  So, how do you protect yourself?  Applying for a patent and handing out Non-disclosure Agreements is one way, and I’m not knocking it (or trying to put my patent lawyer friends out of business).  But remember:  a patent is only as good as your willingness to sue to protect it.  And such suits can be very, very time consuming and expensive.

I just happened to watch A Flash of Genius last night — a really good, underrated movie about the guy who invented the  Intermittent Windshield Wiper.  He tried to market his idea to Ford, got turned down, and then, lo and behold, several years later saw a new car driving around with his intermittent wiper.  He spent 12 long, long, long years pursuing his patent infringement claim against Ford.  In the meantime, he lost his wife, his job and (temporarily) his sanity.  Fortunately, he happened to have 6  kids who stuck with him and acted as his legal assistants during the trial (I’ve got to remember to try that sometime).  Anyway, in true Hollywood fashion, he finally won a $10 million judgment against Ford (of course — it’s not like Hollywood would have made a movie about a guy who lost!).

Now, things have changed a bit since the 70’s and 80’s, when the movie takes place.  It is much easier to actually get to trial on an infringement claim now than it was back when wipers first became intermittent.  But, as a practical matter, it is certainly no easier to prosecute a claim against a manufacturer in Asia, or to outlast a corporate giant once it decides to hunker down and fight.

So, if you really have invented a better mousetrap, it might make sense to consider these practical realities.  No matter how much you love your invention, for most people, it’s really all about the money.  Go ahead and apply for a patent if you can, but also consider selling or licensing your invention as quickly as possible.  Try to get your money out up front, before the product is copied and sold for less than your manufacturing cost.  Then you can leave it to the manufacturer to fight the good fight and protect the product.  And by all means, use an NDA when you show your invention to potential investors.  But more important, only show it to people who seem to have some integrity and whom you think you can trust.  It’s a harsh world out there, and not just in the movies.  I know.  I wish you the best of luck.

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