Bringing a concept product to life requires collaboration with various partners, including manufacturers who will be responsible for turning your vision into a tangible reality. However, before sharing your concept with potential manufacturing partners, it is crucial to consider protecting your intellectual property. One effective way to safeguard your ideas and maintain confidentiality is through a non-disclosure agreement (NDA). In this article, we will delve into the significance of NDAs and discuss whether or not you should require potential manufacturing partners to sign one before disclosing your concept product.
A non-disclosure agreement, commonly known as an NDA, is a legally binding contract that establishes confidentiality between parties. It serves to protect sensitive information, trade secrets, or proprietary data shared during discussions or collaborations. NDAs can be unilateral (one-way), where only one party discloses confidential information, or bilateral (mutual), where both parties exchange confidential information.
While NDAs offer numerous benefits, there are a few factors to consider before requiring manufacturing partners to sign one:
While the decision to require potential manufacturing partners to sign an NDA ultimately depends on your specific circumstances, it is generally advisable to protect your concept product through this legal agreement. An NDA establishes confidentiality, protects your intellectual property, and maintains your competitive advantage. However, it’s important to balance the need for protection with fostering positive relationships with potential manufacturing partners. By carefully considering your situation, you can make an informed decision that safeguards your concept product and sets the stage for successful collaboration in the manufacturing process.
Here is the scenario. Imagine you came up with a great product design. You would like to talk with some potential manufacturing companies or some manufacturing companies who would potentially manufacture your product. You want to disclose your product’s secret information to the manufacturer to see if they have the capability to design that product. Should you have the manufacturer sign a non-disclosure agreement, which is known as an NDA? Yes, you absolutely should.
A non-disclosure agreement, which is sometimes called a confidentiality agreement, is a contract that says once information is disclosed to the other side, they can’t disclose it to anyone else. And it probably also says they can’t use it for any purpose other than to help you. I think that is a very valuable conversation and document to have signed. Because if you don’t have a non-disclosure agreement signed, that manufacturer can take your idea and run with it or share it with a competitor of yours. So it is really important if you are going to share a design or any confidential information with another company that you have them sign a non-disclosure agreement, which is also called a confidentiality agreement. You might say, but a lot of companies won’t sign an NDA. For example, let’s say you went to Google, and said, “Hey, I have a great idea. I would like you to sign an NDA before I present it to you.” Google will usually say, “No, we are not signing an NDA because if we do that and we are already working on the idea, you may sue us later for rolling out that idea. We don’t want to have the risk of you sharing an idea with us that Google is already working on. And then we now are under threat from a lawsuit from you because we came out with this idea.” I have actually been approached many times by people who came up with some great ideas, and they presented those ideas to a large company, and then the large company later rolled out that idea.
When there is not nondisclosure agreement, it is much harder to claim that the company did anything wrong by running with your idea because you can’t have a copyright around an idea. You can’t have a trademark around an idea. You can have a patent around an idea, but you need to make sure that you have gotten that patent. So if you are interested in patenting an idea, like a process or a recipe, or a design, you will want to talk with a patent attorney about that and, at a minimum, get an NDA signed by anybody who you share that idea with. If you have an idea and you share it with somebody, the general rule is that you now have one year to get a patent, or you can never get a patent for that idea. So once an idea goes public, generally speaking, you have one year to get a patent or at least file the application. And if you wait for more than a year, you lose the rights to that idea.
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Important: This material was prepared by law firm staff for educational purposes only. Use this to spot issues to discuss with your lawyer, not as a replacement for a lawyer. You should not rely on this info. It may not be appropriate for your circumstances. It may be out-of-date or otherwise inaccurate.
Aaron Hall
Business Attorney
Minneapolis, Minnesota
[email protected]
