When to Use an NDA and when is it Overkill
When do you need to use an NDA? Well first off, an NDA is a non-disclosure agreement. It means that anyone you speak with about your invention is legally bound to keep it to themselves. You will need to have a template available to send to anyone you plan to work with, minus your attorney, up until your patent is in Patent Pending status. If an attorney tells you that you need to worry about NDAs after your patent, then you should get a new attorney, one who understands the process. Once your patent has issued, your invention is part of the public domain. And that’s ok, because the patent is your protection. If your attorney is extremely pushy about it, you should probably find out why he/she doesn’t trust the work they did.
But NDAs are most important prior to the patent pending status. You should also consider using a template that incorporates a non-compete clause into the agreement as well. This takes the NDA a step further and means that no one can take your idea and create their own similar product and compete against you.
The agreement is usually a fairly simple document, one page in length, and they can last anywhere from 3-5 years. One person who doesn’t need to sign an NDA is your attorney. He/She is bound by attorney/client privilege. But someone you definitely need to get one in place with is the engineer you work with on a prototype. I also sign them all the time. So this is a good document to have in your arsenal as you work on getting the product to market. You should plan on chasing an NDA with service providers until you have the patent pending status in place. The patent pending actually carries more weight than the NDA/NC. Depending on your specific situation, if you have only filed a provisional patent rather than the full utility patent, you may still want to get an NDA signed.
Once you start attending tradeshows or posting stuff to social media, an NDA is extremely difficult to get so it’s best to be in patent pending status prior to doing any of those very public steps. But once you do have the patent pending label, the NDA becomes overkill.
INSIST ON AN NDA
Don’t let any service providers insist they don’t need them or talk you into bringing them on as a partner. Keep all service providers where they belong in the category of work for hire and demand they provide you with the NDA/NC.
There’s an additional agreement in the same category referred to as a non-circumvention non-disclosure agreement. This agreement contains provisions that prohibit a recipient of information from disclosing confidential information and engaging with the contacts of the disclosing party. This one is a little more complex and will require an attorney to draft. If you feel like you need more information on this one, let me know.
An NDA/NC template is something that I am happy to provide you free of charge. I can just send you a PDF you can use to work with me, or any other service provider. So please reach out if you need one.
Any questions you have can be addressed at any of our virtual meetings that we offer monthly. Information about those can be found on my website, www.inventorlady.com. So please come talk to us. The meetings are free and open to all and driven by the questions you ask.
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