Can I show my “patent pending” product or idea without an NDA?

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.

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Comments

  1. I have the patent ‘pending’ status, but have no way( financially) to market it…therefore would be interested in selling it outright. How do I do that? who do I ask to represent me? where do I find buyers? I already went to the expense of getting the patient application and succeeded in getting it granted into the ‘pending’ status – it may actually BE qualified to go in full patent now, but i dont know how to check that either. I havent looked into this for a few years as I have been caring for a family member who has now passed. Would I need to contact the company I paid to get it this far? – are they the only ones who are able to do that check?
    Are there people out there who invest in these things? – where do I start to look?

  2. Elliot, November 10, 2012 [at PatentAuthority.com]
    Here are a few questions for you. Thank you.
    I have 2 new golf inventions:
    1. a new putting alignment method.
    2. a (required) complementary,companion putter that performs the alignment method exactly dead- center. It’s been declared “LEGAL.”
    I am seeking an inside-the-golf-industry consultant/partner/emoployee to help me license or sell these 2 inventions to a golf manufacturer. QUESTION: In my NDA agreement with said consultant, I assume I can ask for/include an invention assignment clause whereby anything he invents along similar lines or related to my products would be assigned to my company. Is this accurate?
    Also, NDAs have an expiration time period of 3-10 years. Is this time period necessary and couldn’t the signee legally disclose my confidential material to anyone after the expiration time? Seems like a GIANT PROBLEM.
    Thank you, Elliot for time and expertise.
    Gordon Hassman 310 822 8732

  3. If your product is good enough, useful enough and evaluated as such by some club pro’s (who you could ask to sign NDA’s (Most will be interested enough to have a look and will sign because they’ll appreciate that you respected their expertise by choosing to ask them, then you may consider sharing a percentage of the proceeds of any sale with an insider partner who then will have an incentive to get a good deal.

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