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NDA vs Patents

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(@hc255)
Posts: 74
Trusted Member
 

Before discussing whether if an NDA acts as a substitute for a patent, it is worth mentioning the differences between the two. A patent is essentially a given right to the inventor saying that he/she or a group of people have the right to the invention from being taken or replicated. This as we know, has a timeline. NDAs however, is an agreement that dictates how information is shared amongst participating parties, the general public, etc. An NDA is not a substitute for a patent. I believe that an NDA can be used as a supplement alongside a patent, similar to an invention disclosure which protects your idea if you do not have sufficient data gathered yet. An NDA can be used to gain resources from other people of desired expertise to work on a project that eventually can plan into a patent. Therefore, an NDA can further facilitate the patent but is not a substitute. It does protect the "secret" mechanism behind the functionality but it does not give the inventor(s) the right to the creation of the mechanism. NDAs introduce a range of communication of ideas whereas patents are public.

 
Posted : 02/12/2017 6:52 am
 ec52
(@ec52)
Posts: 72
Trusted Member
 

The NDA is a great mechanism to protect the company during partner ventures, but not a substitute for a patent. For example, you find out that company ABC (to whom you never told your idea), has put out the same idea that you had. You cannot prove how they found out about your idea, but it does not matter. If a patent is in place and it is clear that your product is covered, you can sue them in the court for patent infringement. When you have a patent, even people who innocently and coincidentally come out with the same product could be held liable for patent infringement.

 
Posted : 02/12/2017 8:44 am
(@tilak)
Posts: 24
Eminent Member
 

In its simplest form, an NDA (Non Disclosure Agreement) is a legally binding contract that creates a confidential relationship between persons holding an idea or invention and persons to whom this information will be revealed. NDAs help to protect sensitive information. More specifically, NDAs also outline what information is considered private and what information can be shared publicly. In the healthcare industry, NDAs are very common amongst lab workers who have access to test results before patients. In contrast to NDAs, a patent is a right granted to an inventor by the federal government that permits them from excluding others from making, selling or using the invention or product over a designated time period. This encourages inventions to be made that are unique and useful in society. When comparing an NDA and a patent, it is important to understand that an NDA only recognizes the parties who's signatures are on the contract, whereas, a patent provides documented proof that specific individual owns the idea entirely. Patents are the only way to guarantee that a specific idea is protected completely.

 
Posted : 02/12/2017 9:52 am
 hv42
(@hv42)
Posts: 42
Eminent Member
 

NDA is a contract, and contract law is an entirely separate field from patent law. How contracts are interpreted is a matter of state law, and interpretations vary from state to state. Our firm practices patent law, which is federal, and so is interpreted uniformly throughout the United States. Another thing NDA gives you a limited level of protection and in many cases it can easily be bypassed, a patent offers you rock-solid, legally binding, enforceable-by-stiff-penalties PROOF of idea ownership.

 
Posted : 02/12/2017 10:11 am
(@thuytienlecao)
Posts: 72
Trusted Member
 

I agreed with others about the differences between a patent and an NDA and how a patent gives you a legal proof of idea ownership. I would like to add to the idea of using NDA to protect ideas and inventions:
NDA can be helpful to protect certain ideas and concepts which are not patentable or easily protected by other intellectual property protection such as business concepts, marketing and advertising ideas, strategies etc. In these cases, signing an NDA is the best that one can do. NDA can also be helpful in providing an additional ground for filing patents in case your partner/member is infringing your patent.

 
Posted : 02/12/2017 12:50 pm
(@ibraheem-shaikh)
Posts: 40
Eminent Member
 

The biggest disadvantage of NDA's, I believe, is jurisdiction. While multilateral patent agreements exist across many first-world countries, such is not the case for NDA's. This allows NDA signers with particularly valuable intellectual property to move to a different country and sell their stolen ideas.

NDA's, as mentioned above, are of course extremely useful for protecting IP that is not easily patentable or protectable by other means. One particularly important use for NDA's is when it comes to trade secrets. A company with incredibly valuable IP - such as SpaceX with its rocket blueprints - will not publish patents and instead will have trade secrets. Trusting the right people and using NDA's is a better strategy here because other countries will, of course, prioritize national interests over patent law.

This is just one exception to the norm of patenting one's IP. Many others exist; do any of you have any examples that you are aware of?

 
Posted : 02/12/2017 2:05 pm
(@cy268)
Posts: 30
Eminent Member
 

As NDA is a confidentiality agreement between two parties but information is still disclosed to a second party and does not guarantee complete protection. Whereas a patent is a document filed with the government and not another entity who has business interests that might involve using your original idea and breaching the contract. In any case, patent law is useful in cases where you can invest and develop your product without the involvement of a third party or their resources to harvest the benefits of the invention. If the invention does not require huge capital investment to develop and harvest it further, patent law is a good option. In most cases, any technological invention requires the backup of high capital investment, professional services and resources that are not possible to obtain without signing an NDA agreement with a company.

 
Posted : 02/12/2017 5:08 pm
(@dipanpatel)
Posts: 71
Trusted Member
 

An NDA is a contract of confidentiality, where a patent is a protection of intellectual property. Contracts are enforced differently in various states and very much matter solely on how well it is written if the contract is broken: it will lead to more of a compensation and damage control and hopefully a payout if proven. Whereas patent law is a federal enforcement and is universally enforced in the states and is backed by the government if infringement actually occurs. Therefore it always best to protect your ideas with a patent, an NDA will have some sense of security when discussing ideas with people one has confidence but its best to patent the idea.

 
Posted : 02/12/2017 9:28 pm
(@akashranpura)
Posts: 39
Eminent Member
 

A NDA is a non-disclosure agreement. While a patent is something that is filed to protect a developing property. In a NDA, the people who have signed it must keep the information confidential and secret. The NDA is seen as a contract and this separates it from the patent law. Contract laws are seen at a state level while patent laws take place on a federal level. NDAs are not a good idea when they are used as the sole form of protection. It is important to patent certain things if it is extremely valuable and if losing it will cause detrimental harm to the company. A patent will behave as the proof of ownership of the idea and are relatively easy to get and are more protective than NDAs.

 
Posted : 03/12/2017 11:24 am
(@alexandrabuga)
Posts: 149
Estimable Member
 

As many have mentioned there is a big difference between an NDA and a patent. An NDA allows two parties to discuss confidential information. In industry if you have a product and you would like to discuss the confidential information with other parties for example other companies you make work with or license the product, in order to keep the information confidential you need to put in place an NDA to protect your IP. There are one-way NDAs where one party is disclosing the confidential information to another party and two-way/ mutual NDAs where both parties are disclosing confidential information. At Sloan Kettering we have over 300 NDAs signed a year. We put an NDA in place if we have filed a patent on a technology and especially when we have not filed a patent. As Dr. Simon mentions the term of the NDA is very important. For example if its only for a year, then that means the company you discussed confidential information then they can take it and run a year after the NDA. At Sloan our standard is 5-7 years and that the confidentially provisions remain confidential for another 3-5 years after the termination. These are standards agreements but the negating usually happens in regards to the term of the NDA. NDAs/CDAs and patents are both ways to protect IP which is great but they are in no way substitutes.

US Patent law is now first to file, which means if someone submits a provisional patent application a day before you submit, they obtain the patent. Its no longer looking at dates in lab notebooks, its first date to file. So this means if you have an invention you should always have a CDA/NDA in place in order to discuss with other parties like investors or companies to collaborate or license but if you have something novel, non-obvious, and useful you should file a patent. A CDA protects the confidential information you provide to others whereas the patent gives you the right to exclude others from making, using, or selling an invention. So you will probably use a CDA for discussions of your product with potential investors/collaborators, and if you filed a patent you can even reference the title of the technology and invention record number. At Sloan each technology has an assigned invention number and that is then associated with the IP details regarding filing stage. Overall NDAs and patents are ways to protect IP, but are very different.

 
Posted : 03/12/2017 12:30 pm
(@krp76)
Posts: 76
Trusted Member
 

An NDA is a useful tool when pitching your idea to prospective investors and even when searching for patent attorney's for your idea. By state and federal law patent attorney's would have an obligation to not reveal your idea and it would be bad for business, so an NDA for them would just be double protection. The key difference is that a patent is a more secure form of protection as everyone knows that you have exclusive rights to this idea. While an NDA can only shield the idea from whoever you had sign it. For example if someone signed an NDA and disclosed the idea in a public place to a friend other individual's overheard they can take that idea since you do not have legal ownership of it. Moreover, if someone else came up with the same idea on their own and filed a patent they now have legal ownership of that idea and the NDA doesn't not really help you anymore.

 
Posted : 03/12/2017 3:55 pm
(@woolynn)
Posts: 36
Eminent Member
 

NDA is an acronym that stands for “Non-Disclosure Agreement.” These are sometimes called “confidentiality agreements.” In sum, they are agreements by which people or companies agree to keep information confidential, and not tell others the secret information they discuss.

Comparing the approaches

Non-Disclosure Agreement (NDA)
Faster and lower cost option to prepare and execute; Easier to complete with minimal legal help; A complete and detailed understanding of the specifics of the invention are not required; only what is shared with others needs to be protected
More difficult to prove breach of agreement and enforce; Provides no protection against independent creation by others, or even the disclose organization if they can provide your information was not used

Provisional Patent/Incomplete Application
Filing date allows subsequent disclosure not to cause loss of rights; Base for the filing of a later non-provisional/formal patent application; Creates ability to use "patent pending" in marketing the invention; Creates a saleable or licensable asset for the business
Costlier option; Takes longer to complete; Requires a description of how to make and use the invention to be provided in the provisional patent application; priority date will apply only to what is described in this application.

Although a provisional patent application will help prevent the loss of the ability to obtain patent rights following a public disclosure, it will not confer the protections that a granted patent resulting from a formal patent application will. An issued or granted patent entitles you to legal ownership of your invention, and allows you to make, use, sell and offer it for sale at your discretion. It will also give you the ability to license the rights to manufacturing your invention, or transfer the patent to another entity entirely.

Ideally, you should apply for a non-provisional patent when you are certain that you have developed your invention adequately enough to fully describe how to make and use the invention. Failing to include something in the non-provisional or formal patent application means that it cannot be claimed as invention; unlike a provisional patent application or incomplete patent application, a full patent application cannot be supplemented with additional information after filing although it some cases a new patent application incorporating these additional details may be filed.

Obtaining a patent in Canada or the United States typically takes a few years because of the administrative and examination wait times involved. Although a provisional patent application (or an incomplete patent application) can establish a filing date in the beginning stages, including it prior to filing a regular or non-provisional patent application does extend the overall time to obtaining a patent. Assuming access to sufficient funds, confidence in the marketability, commercial viability, and patentability of the invention, and knowledge of how to describe how to make and use the invention in sufficient detail, it is best to apply for a full patent application as early as possible.

 
Posted : 03/12/2017 4:14 pm
 zbw2
(@zbw2)
Posts: 47
Eminent Member
 

In my experience, NDAs have been sufficient in protecting ideas during development. patents, even provisional ones must include every detail of the device. if the device is still in development, you don't necessarily want to patent a feature that will likely change in the next prototype. therefore, if you do not have access to the necessary prototyping equipment at your company, NDAs/CDAs are ideal for development especially when dealing with prototyping/manufacturing contractors. when dealing with potential investors patents are ideal, however as many have mentioned above the NDA/CDA will serve as protection, just as I mentioned above, while communication with manufactures/prototyping contractors.

 
Posted : 03/12/2017 4:18 pm
 su65
(@su65)
Posts: 40
Eminent Member
 

NDA is a contract between two people who agree not to disclose anything related to product and sign. A patent is a document which shows/proves the ownership of the idea. That is the idea is patented by its owner so as to protect his/her idea. NDA is signed prior to the patent process.

 
Posted : 03/12/2017 5:39 pm
(@dh239)
Posts: 39
Eminent Member
 

An NDA seems to be a precursor to a patent where a developing idea can be reserved and kept secret while it is developed into an idea that is capable of being patented. NDAs cannot substitute a patent and are most often used when an idea cannot be patented. An NDA has little bearing over cases that are outside of the direct agreement between the inventor and the company that takes part in the NDA. A patent, however, has a federal backing to it.

 
Posted : 03/12/2017 6:23 pm
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