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FAQ: Will a Proactive Publication harm the NDA?

Postby bottleslingguy » Sat Sep 29, 2007 4:18 am

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If I make a proactive video of my invention and show it on YouTube will that interfere with or complicate my use of (or need for) a nondisclosure agreement with an outside company?

Postby Road Show » Sat Sep 29, 2007 5:26 am

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Proactive publication (i.e. public disclosure of the invention prior to filing either a provisional patent application or regular patent application) is a low-cost strategy which attempts to block any other person in the US or abroad from being able to obtain a patent for the invention by putting it in the public realm. A video on YouTube would accomplish this quite well.

The use of a Non-Disclosure Agreement is an entirely different strategy whereby the inventor seeks to limit the disclosure of confidential information. Insofar as the the whole of the information being discussed between the NDA's discloser and disclosee(s) has been made public on YouTube, the NDA itself has been rendered irrelevant; HOWEVER, other information such as methods and processes of manufacture, which have not been disclosed on YouTube, are relevant material for which one would want to have a signed NDA in place.

I think it is a safe assumption that for any information disclosed publicly an NDA would be ineffective.
Last edited by Road Show on Sat Sep 29, 2007 6:04 am, edited 1 time in total.

Postby bottleslingguy » Sat Sep 29, 2007 5:33 am

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It certainly has the potential. :)

Postby Scrupulous » Sat Sep 29, 2007 12:07 pm

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It certainly can.

The two are like polar opposites of each other, in terms of strategy.

However, a proactive publication can be used to defend against potentially unscrupulous activity. Say you've disclosed something in confidence under an NDA, and you don't like the way things look afterward, based on the circumstances. You can publicize the idea to pre-empt any untoward advancement of your idea.

It can also be used to "call the bluff" of a potential licensee who wants to footdrag, by making them unequivocally aware that someone else may pull the rug out from under them. Just email them a copy of the publication, and put a positive spin on it.

Get something on file with the USPTO beforehand, to give yourself incomparable leverage.

cron