Legal Question in Intellectual Property in New York

Documentation for an "Idea"

There are three legal tools that I can think of that might be relevant to protecting a useful "idea" that might be commercially valuable. If the "idea" is expressed in a unique way by words or graphics, then copyright would protect it against someone else's copying and republishing it. If the "idea" is subject matter that might be an invention, then a patent would protect against someone else making, using or selling it, after a patent issues in the relevant jurisdiction (e.g. U.S.A. or some other country). If the "idea" is commercially useful information that is not generally known in a particular trade, then it can be protected as a trade secret against use or further disclosure, and if it is a trade secret, it would be appropriate to refrain from disclosing it unless the recipient signs a confidentiality agreement.

The question you pose is one of evidence: how to prove that someone was in possession of the particular "idea" as of a certain date. There are a couple of strategies in that regard. First, commit it to writing (or tape recording or videotaping or a file on a diskette) and send it to someone else who will "datestamp" it and take custody of it until proof of the date is needed. The someone else can be a government agency, such as the copyright office (as by filing a copyright application) or the Patent and Trademark Office (as by filing a Disclosure Document or a patent application). Or it could be a commercial entity that does such things as "source code escrow" or your local bank or an attorney, or even just an acquaintance who would be believable when testifying in court or some other proceeding.

Indeed, if someone creates a writing that is unalterable (e.g. ink on paper) with a date that is trustworthy (e.g. a notarization, or even the signature and date affixed by a trustworthy acquaintance) it wouldn't be absolutely necessary that the creator of the document actually part with it. This is the customary technique used to create signed and witnessed lab notebooks that are used to support the date of invention when needed in certain patent proceedings.

I should point out that the reference to copyright in the question is a bit misplaced, in that it doesn't take any time to obtain a copyright. Under U.S. federal law, the "copyright" is automatically created when a work of authorship is written down or otherwise fixed in a tangible medium of expression. The copyright REGISTRATION can come later.

You mention speaking with an attorney. That's absolutely the best thing to do. The attorney can help you determine which of the legal tools best fits your "idea" and commercial strategy. The attorney is obligated professionally to maintain confidential whatever the client tells him/her, so one doesn't need a separate confidentiality agreement with one's own attorney -- it comes "with the territory."

Protecting your idea

Mr. Elfman did a fine job covering the territory in his answer. I might only add that if you came up with this "idea" while on the job in your usual duties for your employer, it may be your employer's to commercialize as a "work made for hire" if a copyrightable item. Further, if patentable or a trade secret, your employer may have a "shop right" (a right to a non-exclusive license in the "idea"). Also, depending how tangible your idea is, you may want to have those you share it with sign a confidentiality agreement. Given the limited amount of information here, you really need to sit down with an intellectual property attorney and give your attorney the facts so they can render a reasoned opinion as to your options.

"Ideas" per se are not protectible.

You generally have to commit them to a tangibleexpression to use either copyright law or trademarklaw to protect your 'idea'. But the idea itself cannot be protected by these laws ....

For patent law, there's often a race to create a firstworking model and sometimes another race to sell / use it for interstate commerce, etc. (There are other racesinvolved, too.) The protection depends amongst other things the novelty of your 'idea', but generally you have to 'prove' that your idea works by creating the darned thing and running it (or whatever) before you can get a patent.

For copyright, the level of protection you get is a bit lower and relates more to the expression (choice of words, visual appearance) of your idea than the idea itself. To enforce copyright of for example a story, e.g., a novel with a novel plots or a movie idea, you might even need to show that the infringer actually saw yours before he created his.

You ought to confide in an attorney locally. May I suggestthat you do not fall for those ads for inventors to get theirideas manufactured and patented by some organization withoutfirst obtaining your own protection with the guidance of yourown personal attorney ... assuming you can afford it!

Copyright protects expression, Patent protects the idea

Gerry Elman wrote a very good synopsis of the various forms of protection. One common misconception of patent law in the United States is that the first to the patent Office gets the patent. In the US, this is not true. The first to "invent" gets the patent, PROVIDED the inventor diligently reduces his invention to practice. There are also portions of the patent laws that prohibit a patent if the invention has been published or if you attempted to sell it more than a year prior to applying for the patent. Many inventors lose the right to patent their idea because they present their idea to others, and then wait too long to apply for a patent.

In the United States, only a patent agent or a patent attorney can represent an individual before the Patent office. Both a patent agent and a patent attorney are licensed to practice before the Patent Office, having taken a separate exam for the privilege of representing clients before the patent office. You should ask your attorney if they are licensed to represent you before the patent office, and if they are not, ask for a referral to an attorney who is licensed. A Patent Agent is a non-attorney who can prepare an application, but cannot practice law. A Patent Attorney is an attorney who is also licensed to prepare patent applications (and do other things for clients, before the Patent Office).

Patent law is federal law, so unlike other areas of the law, it is uniform in all 50 states. Contact a Patent Attorney soon, to preserve your rights in your invention.