Protecting your ideas is a big concern for inventors and hardware start-ups, but there are clear paths to protection and we can help you figure out what levels of protection you may need for your product. While we’re not lawyers, we’ve collected some details of Intellectual Property Law that you can consider when starting your hardware business. In addition to these materials, you can read our IP Primer in our Hardware Community. Remember though that most hardware start-ups are more about execution than invention, so cover your bases and get to the hard work of building a company. Momentum can’t be stolen.
NDA – Non-Disclosure Agreement
Non-disclosure agreements (NDA) are signed formal agreements in which one party agrees to give a second party confidential information about its business or products and the second party agrees not to share this information with anyone else for a specified period of time. In many cases, your non-disclosure agreement can be mutual or two-way. NDA’s used to be used for investment sources too, but most venture capitalists won’t consider a company that requires a non-disclosure agreement because of the time and overhead involved and the potential for legal liability.
A copyright is a form of legal protection in the US to authors of “original works of authorship.” This includes literary, dramatic, musical, artistic and certain other creative works. Material not protected by copyright (or otherwise protected) is available for use by anyone without the author’s consent. A copyright holder can prevent others from copying, performing or otherwise using the work without his or her consent. For your hardware start-up, the elements that you would consider copywriting would be your marketing materials, design documents and other ancillary descriptive works. The name or other brand elements of your products would need to be Trade Marked to be protected. To protect the product itself, you would seek a Patent or patents.
A trademark typically protects brand names and logos used on goods and services, such as words, phrases, symbols, or designs. Trademarks need to be applied for and undergo review by the US Patent and Trademark Office. This governmental organization, a division of the Department of Commerce, lists 7 steps to be considered in the process of filing a trademark:
STEP 1: Determine whether you need trademark, patent, or copyright protection.
STEP 2: Determine whether you should hire a trademark attorney.
STEP 3: Identify your mark format: a standard character mark, a stylized/design mark, or a sound mark.
STEP 4: Identify clearly the precise goods and/or services to which the mark will apply.
STEP 5: Search the USPTO database to determine whether anyone is already claiming trademark rights in a particular mark through a federal registration.
STEP 6: Identify the proper “basis” for filing a trademark application.
A patent protects an invention or discovery. There are three main types of patents: utility, design, and plant. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Most products developed by hardware start-ups and makers would seek a design patent. A utility patent may be issued for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof. Plant patents cover organic modifications, so not likely a big consideration for a hardware start-up. Filing for provisional patents is fairly easy and straight forward and enables you to claim “patent pending” and gives you a year to complete the filings and seek full patent coverage. Filing for full patent coverage on the other hand is complex and most often requires a patent attorney. Patents swing into and out of favor with start-ups and funders, but be sure to examine whether you need and want a patent and search the patent databases and consider talking to a patent attorney before your start walking down this arduous path.