There is scope to protect an idea!

In a landmark appeal case concerning breach of confidentiality, a former Master of the Rolls, Judge Lord Green, stated: "There is no better way of really understanding something than try and 'improve' it - if you produce a different result, it is absurd to say that you made no use of the thing which you set out to improve."

These are words of legal wisdom. The same learned Judge went on to say: "The mere simplicity of an 'idea' does not prevent it being confidential and, indeed, the simpler an 'idea', the more likely it is to need protecting. " If a case of breach of confidence is to succeed, he says, three principle elements need apply:

The information itself must have the necessary quality of confidence about it.

The information must have been imparted in circumstances importing an obligation of confidence.

There must be an unauthorised use of that information to the detriment of the party communicating it.

In my view it is well established that confidentiality is the cousin of trust. But how many of us are prepared to place our full trust in revealing our great 'idea' to a person or company who owe us nothing but a duty to play fair? As a Licensing Practitioner, I know from personal experience that many of the medium to large companies are extremely hesitant in committing themselves to confidentiality agreements. This places a huge burden on a person who has a non-patentable product or idea, which firstly must be exposed before being able to rely upon copyright. By that time, the idea may have undergone skilful literary surgery. Therefore, the originator of the 'idea' has no copyright to protect!

"In My View" by

Harry Cole

Related further reading...

Further Reading:

Editors Note: This article first appeared in Inventors World Magazine, Issue 5, 1998. The text is unchanged but since then Harry has continued to develop his ideas - see below.

For the purpose of this article, let us assume that although the submitter may be able to rely upon an implied obligation, no confidentiality agreement exists or was signed. Therefore, say if after submission of an idea the evaluator steals the 'idea' but not the copyright thereto, how indeed is the Submitter expected to fight his corner in a Court of Law when clearly no Laws are in place to protect an idea?

Obviously, once ideas are further developed, they may obtain a Patent or Copyright. This factor, however, does not remotely address this specific issue of theft of an idea. I therefore trust that this article may elicit others to examine the problem and come up with solutions. Or indeed, convince me that there are none, preferably before I am dragged away by clones in white coats.

Only Emanate From The Brain

If an idea which can only emanate from our brain, and not our backside, is regarded in law as having no significance whatsoever (until developed further), I assert that the 'titled' owner of that idea is exposed to risk of theft. If a company is unwilling to sign a confidentiality agreement with the ideas person (hereafter referred to as the submitter), but the submitter is happy to make a disclosure, he runs the risk of his idea being stolen.

However, in the early stages of seduction, it is incumbent upon a company to show proof to the submitter that they were developing the same idea. But perhaps herein lies the problem. Companies are under no legal obligation to disclose to third parties their trade secrets (which may include developing the same idea) and therefore it would only be ordered by a judge to show proof if both parties became litigants - which may financially ruin the submitter.

I am aware that many companies will only evaluate a product if the inventor has filed for a patent beforehand. But I am compelled to say a mutual confidentiality agreement, if properly constructed by a competent Lawyer or Licensing Practitioner, will incorporate equal safeguards to both parties. However, be that as it may, my proposed scheme would allay most fears on both sides and perhaps be sufficient to overcome this specific obstacle.

Notwithstanding the risks involved, companies who say "sorry, we never sign Confidentiality Agreements" are now quite common. In my view, companies who adopt this attitude are often commercial losers. They are not privy to a new product and therefore, possibly, lose a valuable marketing lead.

Problems can also manifest themselves with employees with attitude problems who masquerade as so-called New Product Managers. To the few who may not have encountered these sad b*st*rds I may appear to be uncharitable, or even a cynical old sod. But many Product Managers (at least the ones I have encountered) invariably suffer from tunnel vision and demonstrate a negative attitude such as "it's not my idea" syndrome. Many companies are losing out because their employees are either not bright enough to spot a commercial gem or are offered no financial incentive if they do.

Let us assume that I have developed (or discovered) a 'solution' or 'system', or even a 'method' of modifying the Stock Market system, thereby revolutionising the global finance industry, and either save or make them billions each year. How do I go about protecting my idea or system? But, more to the point, who is actually going to pay me royalties for my idea after it is exposed and used by stockbrokers worldwide, without any thought or care of where the idea came from? Is there some deficiency in the law I wonder, or am I not doing things right?

The owner of intellectual property rights of say, business plans, schemes, systems or call them what you will, are still products of his mind and rely on copyright protection. This makes them more difficult to exploit, or even protect, despite the fact that in some cases the 'idea' behind the 'plan' has vast commercial potential likely to create job opportunities or benefit Mankind in some other way.

File For A Patent

Many Patent Attorneys or Lawyers who specialise in Intellectual Property Rights (IP) are forever administering the same advice to the thousands who ask "I have an idea - how do I go about protecting it?" I bet my life that a large majority of these specialists reply - "FILE FOR A PATENT!" But not all ideas are patentable are they? This suggests to me, wearing my business hat, that many IP specialists are only focusing their skills in one direction and not looking beyond the horizon, perhaps to new areas that offer the potential to increase their profits or at least utilise their many skills. Now I'm sure that patent agents or lawyers will say "but, my dear Harry Cole, don't you know that if someone breaches your copyrights you can sue the b*st*rds." "Yes", I retort "but what you obviously don't know is that they never actually breached my copyrights, but stole my 'idea' after I had launched it into the public domain - thereby having no copyright to protect!" (Theft of an idea is the crux of this article). Then they retort with smug superiority "surely you are not that dumb as to know that you cannot protect an idea!"

By this time I am exhausted and realise that I simply cannot get this point across. But I muster one final breath "even an industrial product originated from an idea - after all is said and done, a patent is granted on its novelty aspect, and my business system (or TV game show), is novel, so where's the problem?" They mutter: "Poor old sod. He wants certifying." EUREKA! Now we are getting somewhere. "YES", I scream after some madman has thrown a net over me, "I do want a kind of certificate from the Government to protect my idea." I'm afraid that anyone who believes that the Law of copyright is a strong deterrent against infringement of rights is not dealing in the commercial world. Here, shafting the inventor or copyright owner is the name of the game; simply because industry knows that legal recourse is a costly business and, for most inventors, out of reach.

So, what improvements can be made to protect an idea? I cannot over-emphasise that the scheme I have in mind is not for every 'crack-pot' idea. Nor indeed, for ideas that owners could apply for a patent, trademark or design registration; nor for mathematical formulas or discoveries that seek to defy the laws of gravity, physics - or indeed, ideas of a sexual nature (that's a pity). So, what do I advocate? Quite simply a two or three year 'grace period' or licence granted on 'ideas' which have been developed into a marketable "commodity". For example, say I have developed an insurance product which insures the homebuyer against the consequences of falling into a negative equity trap, and my policy is designed to protect them against such disasters. I know that it would be safer to swim with sharks than to expose my new policy to the insurance industry - who may steal my idea, or modify it (after I have gone public) to save paying licence fees. Why should the insurance industry make a fortune from my idea and I get nothing in return? What incentive do I have in introducing other products to the marketplace if they can be abused with legal impunity?

The scheme could be administered by the Patent Office (Now the Intellectual Property Office (IPO)), under the auspices of the Department of Trade and Industry (DTI) (Now Business Innovation & Skills (BIS)). Alternatively, the DTI could use the offices of other bodies to undertake the evaluation process. The evaluation of ideas could be processed either by patent attorneys, solicitors specialising in IP or selected members of the Institute of Patentees & Inventors (IPI), Institute of International Licensing Practitioners (IILP) or Licensing Executives Society (LES). Evaluating client products becomes second nature to a competent practitioner, but being a member, I am already displaying a degree of conflict of interest so I'll sing their praises no more. Every applicant for a so-called 'grace' licence however, would need to prepare a business and marketing plan to submit for evaluation, in which the commercial potential would over-ride any novelty aspect of the idea.

In my view a grace licence would obviously deter latent infringers in the early stages. The applicants would also have to submit a sworn affidavit to the effect that they have a clear 'title' to the idea, and it was conceived by them. Giving false information would incur substantial fines or even imprisonment. Furthermore a fee of say £500/1000 would be payable on submission, and paid each year of licence grant. This would not only make the scheme self-financing, as presumably most of the fee would be paid to the evaluators for time and administration, but also act as a deterrent against those with 'crackpot' ideas. The governing body's decision would be final, with no grounds for appeal. I would also suggest that each 'grant' is gazetted, with name of licensee and brief details of product granted 'grace' protection. By doing so this may address negative thoughts as to restrictive practices or other such anomalies. Indeed, once the product is disclosed into the public domain it would be open to any potential licensee to seek a marketing licence from the grant holder. Alternatively, anyone could abuse the copyrights thereto but would suffer the legal consequences. I assert, such a scheme would enhance the value of 'ideas', give more incentive for their exposure which, in the fullness of time, would benefit the British economy.

For completeness, I suggest a suitable title: IDEA DEVELOPMENT EVALUATION ASSESSMENT SCHEME (IDEAS). No doubt, if this scheme ever sees the light of day, or this title is used, I shall expect nothing less than a blade on my shoulder, but hopefully not in my back!

Some sceptics may respond "But what if other companies were developing the same idea?" So what! The whole purpose of this scheme is for ideas which are new and not already commercially exploited, and in no way would this scheme have any material effect on patents that may be filed, or other registered rights. If the applicant meets all the stringent requirements, which I am happy to expand upon by request, then it will be a case of "First to expose the 'idea' into the public domain - is first to secure his right to the idea. (UK protection only)."

It can be as simple as that, or as complicated as Lawyers make it. Finally, I leave you with one more thought. If the Patent Office or DTI adopt this scheme, and make a bundle out of application fees, I trust they won't make me feel guilty if I send them a licensing agreement. After all is said and done - it's my Idea!

I rest my case M'Lud!