‘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.
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:
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.
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.
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.
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 2018Tags: