Vol. 1, No. 8
June, 2001
When a Portland, Oregon patent attorney was asked this question some years ago at a conference, he paused, hitched up his pants, and replied, "Steal it? Young man, the chances are you can't even give it away."
This question comes close to heading our FAQ—frequently asked questions—list. The response by this Portland patent attorney doesn't answer the inventor's question, but it does make a major point, that point being that the security of his or her intellectual property rights is not the inventor's major concern. The major issue facing every inventor as he or she begins the innovation process is the commercial potential of the new brainchild. We don't have a precise measure of the risk profile faced by independent inventors at the idea stage, but it is a very good bet that it is less than one in 100 ideas will ever see the light of day in the marketplace. How much less isn't very important. In fact it isn't important at all—odds like this are sufficient to render security a minor concern relative to feasibility.
Does this mean that inventors should not be concerned about security? Of course not! But it does mean that inventors should get their concerns straight. Worry first about commercial potential and second about protecting your ideas.
However, do not become obsessed with the possibility that someone will try to steal your idea. The Portland patent attorney was right. Companies don't steal high risk inventions. On this basis alone, the chances that someone will steal your idea are pretty low. Of course, the odds go up somewhat as commercial feasibility approaches viability. Even then, the majority of firms are basically honest in their dealings with inventors. For example, when Schering Plough licensed a 50-year old invention, an in-grown toenail strip with long expired patent protection, from a 76-year old Arizona inventor (and WIN client), the firm paid the inventor a royalty. It didn't have to, as the idea was long in the public domain. It is sometimes a very small world; several years later I discovered my nephew had played a role in that decision. When I asked him about the royalty on a public domain invention, he simply responded, "We did it because it was right, after all, it was his idea." The moral of the story here is that not all the world is out to steal your idea—the majority of firms will treat you fairly and honestly.
Excessive concern about security—usually expressed in terms of confidentiality—has two very natural consequences:
The bottom line here is that exaggerated concern—paranoia—is a very good way to insure failure.
OK, let's assume that it isn't, but there isn't much you can do about it. Corporations are not going to accommodate you just because you are an independent inventor. Those who do not sign NDAs are not going to do so because of your concerns. When you approach them with an idea or invention, keep in mind the fact that they are the customer and you are trying to sell them something. They are going to demand their rights.
If you think corporations are unreasonable, consider the marketplace. It has no heart, no mind, and no soul. It does not think and it has no conscience. It functions on the basis of collective satisfaction. It is made up of individuals who make unilateral independent purchasing decisions based on their individual perceived needs and level of previous satisfaction. The customer is a king and/or queen of the worst kind. He or she could care less about the welfare of those who serve them. There are no excuses. Those who fail to satisfy their needs and wants fail, be they large or small. Am I exaggerating? Perhaps, but when was the last time you considered the welfare of a retailer or manufacturer in making a purchase? This is why corporations screen their new product ideas and subject them to increasing levels of scrutiny, evaluation, and research as they advance through the innovation process.
Be it fair or not, you insist on confidentiality and ignore research at your own peril. But perhaps it isn't as unfair as it might seem. . . .
At times inventors seem to have very long memories; or perhaps they are history buffs. Whichever is the case, the occasional, but well publicized, case in which an inventor wins a judgment against a corporation lingers long in inventor circles. Still circulating are stories about a misappropriated tool, radiator overflow device, and an electronic ignition, all of which are 15-20 years old.
Perhaps more significant in fueling inventor paranoia are claims by friends, others, and perhaps self, that "They stole my idea." The allegation is far more likely than not to be false, but the experience of coming up with an idea, only to see it in the marketplace, is quite real and not uncommon.
Human psychology plays a role in this phenomenon as we all tend to notice things that we have become sensitized to. For example, when my daughter recently bought a new purple VW Bug, I immediately began to see more Bugs on the road. So far I haven't seen any purple ones, but my overall Bug count has more than doubled. The same is true of inventing: invent something and you will be far more likely to spot a like or similar product.
However, this phenomenon cannot be explained away by psychology. We are still left with the curious phenomenon of parallel invention and innovation. I do not have an acceptable explanation for it, but I have observed it numerous times. For example, people have been tying things on car antennas for about as long as there have been antennas on cars. When I was a kid, raccoon tails were making a comeback from a previous fad. Since then, I have seen a variety of other antenna decorations. Technology in the form of Styrofoam gave rise to brightly colored little antenna balls. This fad went the way of all fads. In due season, it too faded on the close-out tables of the nations' retailers. I wasn't surprised to see it resurface about two years ago from an inventor who claimed the idea was new and there was no competition for it. Within a fairly short period of time it surfaced in idea form a couple of times again. When it surfaced one more time in market ready form, I referred the manufacturer on to a major retailer. Recently I have counted six or so manufacturers now making like products. Demand hasn't assumed fad like proportions, but there are a variety of alternative products nibbling away on this niche market. We did not tell anybody about the antenna ball idea, nor did the retailer. It is our standard practice not to disclose ideas and inventions submitted to us to anyone, including retailers. Retailers and other third parties do not see anything WIN reviews until the client is prepared to present his or her product to them.
The curious part of this phenomenon is that we frequently see ideas and inventions in clusters. We know we are not talking about our client's ideas, and it is a pretty good bet that they aren't either. Perhaps the best explanation for this phenomenon is the old adage, "Necessity is the mother of invention." Actually, this folksy expression makes a lot of sense. As society and its needs advance, it is not unreasonable to expect that more than one individual might sense emerging needs. Perhaps the classic example of this is the invention of the telephone, when perhaps as many as five people were working on the same basic idea simultaneously.
Now, what does this have to do with firms not wanting to sign NDAs? Everything. Many of them have learned from repeated experience that the majority of ideas submitted to them are ideas they have either seen before or have generated internally. This is more likely to be the case if you have done your homework and are targeting firms which manufacture or market products similar to or related to yours. These are the people who are most likely to be able to do a good job with your invention. Unfortunately, they are also the folks most likely to have seen it before.
Part of the problem here is that the vast majority of inventors embark on the innovation process with the firm belief that there is no competition for their brainchild (at least this is what over 90 percent of our inventor clients tell us). A couple of years ago we asked a group of buyers at the world's largest retailer to rate a group of ideas and inventions, most of which had passed our assessment process. With a few exceptions, these projects represented the cream of the crop—about the top ten percent of those submitted to us.
We had done our best to screen out those that were inferior to products already on the market. We don't major in uniqueness, as this can be as much of a curse as it is a blessing. However, many of the reinventions and carbon copies we saw did not make it into the group of inventions we sent to those buyers. Keep in mind that these buyers are among the most knowledgeable people in the world when it comes to product availability within their specific product areas.
Of a sample of 81 reviews, the buyers rated only 15 (or 18.5 percent) as "absolutely unique with no similar products on the market." It is interesting to note here that this group represented about 10 percent of the inventions submitted to us, and the buyers rated less than 2 percent as novel in contrast to the over 90 percent novelty rating of the inventors themselves. This means that about 98 percent of the allegations of theft by inventors are based on imperfect knowledge of the marketplace rather than the possibility that someone has misappropriated their intellectual property.
While I can accept necessity as at least a partial explanation, I'm hard pressed to extend this explanation to the resurgence of old fads like the antenna ball. I'm left with a lot of unexplained examples of parallel invention and innovation, against which there is no defense. Whatever the explanation, it does not lie in the claim, "Somebody stole my idea."
Just as it is unlikely somebody stole that idea, it isn't likely that somebody is likely to steal this idea. So, how can I make sure you won't steal my idea? In spite of everything I have said thus far, this is still a fair question and wholesale broadcasting of your idea is not good policy. It is a fair question, but it is not a good question because it is not the right question.
No, this isn't double talk. It isn't the right question because it does not go far enough. Unhappily, there seem to be a fair number of people who will guarantee confidentiality, but who do not serve your best interests. For example, last week I reviewed perhaps the worst new product idea I have seen in the ten years of the WIN program. Sorry, I can't tell you what it is, as our policy of confidentiality extends to even the worst of ideas. There is probably no way this inventor could be harmed by disclosure, as the prospects for success of this idea are about as low as they can get. Still, confidentiality at the idea evaluation stage is a very good idea.
The problem I observed in this case was that the inventor had entrusted his idea to an unnamed company or person. This individual/firm had helped him obtain a design patent (that could easily be designed around in about thirty seconds) and had provided him with a professional appearing but very shallow presentation of an idea that had no commercial potential. It is a good bet that this inventor had shelled out several thousand dollars and had nothing of value. Sure, he might have had their assurance that they would not steal his idea or tell others about it, but he did not receive the kind of help he needed and deserved.
Thus far I have not answered the question, "How can I be sure you won't steal my idea?" The most truthful and accurate answer I can give you is simply that you can't. There are no absolute, ironclad guarantees anyone can provide you. The best NDA in the world is only as good as your willingness and financial ability to enforce it. Even then you are powerless against those who are judgment proof and are not worth going after. Good patents are your best defense against thievery; however, they too are dependent on your willingness and financial ability to enforce them. Not telling anyone about your idea is pretty effective, but very unsatisfactory for two reasons. First, if you don't tell anyone, you won't ever be able to do anything with your idea. Second, even if you cloak your idea in secrecy, a parallel invention may come along and jerk the covers off of it.
The question the above inventor should have asked is, "Will you tell me the truth and treat me fairly?"
Obviously, anyone bent on misappropriating ideas, or providing meaningless or misleading services to inventors, is likely to answer this question in the affirmative. In fact, they are likely to provide lots of assurances that they are indeed on your side. So, what good does it do to ask the question? It depends on whom you are asking. Seek advice from the pros that don't have a personal axe to grind. I know of no better way than to ask a local inventors' group. An up-to-date national list of inventors' groups can be found on the website of the United Inventor's Association at www.uiausa.com.
Actually, this article isn't about asking questions. It is very much about having the right frame of reference, rather than worrying about who is going to steal your idea. This will lead to inventor paranoia. Cloaking your idea in secrecy will scare others away and keep you from getting the help you very likely need. Instead, focus on who is going to treat you fairly. This is a much broader and more important issue. It also includes maintaining your confidences. After all, all things considered, security is still a legitimate issue, but not at the expense of everything else.
Gerald G. Udell, Ph.D.
Copyright © 2001 by The Innovation Institute.
Permission to copy for free distribution granted to SCORE/SBDCs