Question

Someone’s stolen my idea, what can I do?

Answer

‘Help! Someone’s stolen my idea. I don’t have any registered rights for it. Is there anything I can do?’ Well, there might be.

Breach of confidence

In some circumstances, you may be able to rely on what’s referred to as ‘breach of confidence’.

Whilst the various requirements for taking steps against someone who has breached your confidence are complex, the basic requirements can be summarised as follows:

  • The information must be of a confidential nature. This means that the information you give to the other person must not be something you are freely sharing with lots of different people.
  • The person receiving the information must have used it and caused you harm as a result. For example, if the other person or company launches their own product, including your technical innovation or great new design, or publish it on the internet, then this may well harm you commercially.
  • The information must have been communicated in circumstances which made it clear that the information should be kept confidential. In other words, if you tell someone about your idea at a party and don’t mention that it is confidential, the other side cannot be held to have breached your confidence if they pass that information on. On the other hand, it might be a different story if the information is handed over in a closed meeting via a document marked ‘confidential’.

Whilst you may have legal options open to you if these basic criteria apply, what may be more useful in practice, however, is that suffering a breach of confidence could be a useful bargaining chip in coming to some sort of agreement with the other side.

Can I still get a patent if there has been a breach of confidence?

In general, if your invention is disclosed before filing a patent application then you won’t be able to get a patent granted.

However, if you tell someone about your idea in confidence and they then disclose the idea to the public and this idea contains patentable components, you may still be able to get a patent for it. For example, for European patent applications, there is a 6 month window after the disclosure in which a patent application can be validly filed if there has been ‘evident abuse’ of confidential information. In reality, the circumstances in which this issue arises are quite rare.

Can I still get protection if I have told others about my invention but there’s been no breach of confidence?

In general, no you can’t. That said, you may still be able to protect your idea with a patent in some countries and in some circumstances.

Some countries have ‘grace periods’. Essentially, these are periods before the filing of a patent application during which disclosures of the invention do not count against the patentability of the invention. For example, there is a 12 month grace period in the US, Canada and Australia and a 6 month grace period in Japan. However, no such provisions exist in Europe or the UK.

Similar grace periods exist for obtaining registered designs. For example, there is a 12 month grace period for registered designs in the UK and also for European Community registered designs.

Intellectual property rights without realising it

You may also have some intellectual property (IP) rights without even realising it; some IP rights are automatic. Examples of these are copyright and unregistered designs.

If someone is using your brand or making their products look as though they’re yours, you may also be able to rely on the laws of passing off.

In short, if someone’s stolen your idea, you may still have some options open to you. All may not be lost.

Answer last updated: 17 Jan 2018

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