Q: We filed a patent application (provisional or non-provisional) and have “patent pending” status. Can we show our product to others without having them sign an NDA (non-disclosure agreement)?
A: Yes… more or less. If the most important thing to you is building your company, and you have a well written patent application and thorough IP strategy, go show your product and get the word out, but keep the following in mind:
An NDA helps fulfill the immediate need or desire to stop others from copying your invention. However, it is a bit impractical and reduces your ability to sell your product if you have to ask everyone to sign an NDA. So, while an NDA would provide some level of “protection” not yet afforded to you by the patent application, you can proceed without one. Keep in mind, that without a granted patent or NDA, someone can still copy what you have disclosed to them and you would have few if any legal arguments to stop them.
Of course, anyone who does this would be shortsighted and making a bad business decision; since you have a patent pending, and you fully expect that it will mature into a granted patent with reasonably broad claims that cover what you disclosed in the application, a copier could be barred from selling their product or forced to pay you royalties after the patent is granted. For this reason, if someone knows that you have a “patent pending,” they will usually avoid any impropriety.
You should be careful not to disclose any new, useful, or non-obvious improvements not disclosed in the provisional application. For such improvements, an NDA can be executed, or you can file another patent application.
I would advise against showing anyone the actual patent application, unless there is a good reason to do so. That is entirely up to you though. Your patent application will be kept confidential, at least for some time, by the U.S. Patent and Trademark Office.
In summary – the short answer – go ahead and show it. If you have any more questions please contact me at elliot AT patentauthority.com.