Key Takeaways

  • Confidentiality agreements are essential tools for protecting inventions before patents are granted.
  • The Patent Confidentiality Act refers to U.S. laws and policies designed to safeguard sensitive patent information during the application process.
  • Public disclosure of an invention—through sales, offers, publications, or demonstrations—can jeopardize patent rights.
  • Some countries follow stricter “absolute novelty” rules requiring patent applications before any disclosure.
  • Investors and manufacturers may resist signing confidentiality agreements, but alternatives like provisional patent filings can provide protection.
  • Attorney–client confidentiality and patent agent privilege ensure discussions with legal advisors remain protected.

Patent confidentiality means that you can reveal your invention to a third party without worry that they will steal your idea or reveal information about your invention to the public. You can protect information about your invention by using a confidentiality agreement.

Patents and Confidentiality Agreements

If you are an inventor and want to tell investors and other interested parties about your idea, using a confidentiality agreement is a good solution. With a confidentiality agreement, you can protect your idea before your patent has been granted.

While it's true that a confidentiality agreement can't actually stop someone from stealing your idea, it will give you legal options if your invention is stolen. For example, if the person who signed the confidentiality agreement steals your idea, you may be able to file a lawsuit against them.

When drafting your agreement, include the following information:

  • What information will be considered confidential.
  • Responsibilities of the parties in the agreement.
  • How long the agreement will last.
  • Whether third parties will have any rights to the information.
  • How to resolve disputes related to the agreement.

Inventors should insist on a confidentiality agreement in the following situations:

  • Researching the market for an invention.
  • Licensing an invention.
  • Requesting feedback about an invention or trying to find a partner.

Every year, venture capitalists consider countless inventions and products for potential investments. Signing and keeping track of a confidentiality agreement for every product they consider would be very expensive and time-consuming for most venture capitalists. Because complying with confidentiality agreements is impractical for venture capitalists, most of these investors will not sign one of these contracts.

Fortunately, most experienced venture capitalists are not interested in stealing ideas, particularly ones that aren't fully formed. Investors don't want to spend money developing inventions. Instead, their goal is putting their money into inventions that are fully realized and nearly ready to hit the market.

Other parties, however, may agree to a confidentiality contract, including:

  • Developers
  • Licensors
  • Manufacturers
  • Market Researchers
  • Prospective Partners

Remember: confidentiality agreements typically only protect the inventor. Generally, your agreement should be no longer than two pages. You'll need to include broad language about your invention, as well as specific details about the length of the contract and what information it protects.

Understanding the Patent Confidentiality Act

The Patent Confidentiality Act provides a framework for maintaining secrecy during the patenting process. At its core, it protects sensitive details of an invention when an application is under review by the United States Patent and Trademark Office (USPTO). This confidentiality prevents competitors from accessing technical details until the application is published, typically 18 months after filing.

The Act is especially relevant for inventions tied to national security. Under 35 U.S.C. § 181, the government can issue secrecy orders that restrict publication and foreign filing if disclosure could harm U.S. interests. In such cases, inventors may receive compensation for delays but cannot market or license their inventions until restrictions are lifted.

For inventors, understanding the Patent Confidentiality Act helps clarify why patent offices maintain strict rules and timelines regarding disclosure, publication, and international filings.

Patent Filings and Confidentiality Agreements

How you reveal information about your invention will determine if acquiring a patent will be possible. For example, if you publicly use, sell, or disclose your invention a year before filing a patent application and then fail to file an application, you cannot patent your invention. Essentially, after public disclosure occurs, you will have one year to submit.

You should be very careful about telling other people about your idea without patent protections in place. Publicly revealing any information about your idea can put your ability to protect your invention at risk.

Publicly revealing your invention can occur in several different ways:

  • Selling your idea or making an offer to sell your idea.
  • Using your idea in a public space, even if no one sees the use.
  • Showing your idea in a public space, even if no other person sees the display.
  • Revealing information about your invention in public. This can include publishing information about your idea in a blog or social media post, or giving an interview about your idea.

However, in certain circumstances, experimental use of an invention does not count as publicly revealing your idea. These circumstances include:

  • Telling a potential investor or manufacturer about your idea after they have signed a confidentiality agreement.
  • Revealing information about your invention to a patent attorney while receiving legal guidance.
  • Using your invention in secret in a location where you have an expectation of privacy.
  • Keeping your idea as a trade secret and taking steps to maintain this secret.

Countries other than the United States observe the "absolute novelty" rule. Basically, this means that in these countries you must have filed a patent application before using your invention in public. As an inventor, you should never tell anyone about your invention if you're not sure you can trust them to keep the information private. If you're not sure if you can trust a person with your invention, you should insist that they sign a confidentiality agreement.

Balancing Investment Needs with Confidentiality

A common dilemma arises when inventors need funding but also want to preserve patent rights. Venture capitalists often refuse to sign confidentiality agreements, leaving inventors exposed if they present ideas without protection. To address this, inventors can:

  • File a provisional patent application before approaching investors, securing a filing date while keeping details confidential.
  • Share only non-enabling information (general benefits, market potential) rather than technical specifics.
  • Use phased disclosures—revealing more detail as negotiations progress and trust is built.

This balance allows inventors to attract capital without undermining their ability to secure patent rights.

Global Perspectives on Patent Confidentiality

Patent confidentiality is treated differently across jurisdictions:

  • United States: Allows a one-year grace period after public disclosure before filing.
  • Europe, Japan, and many other countries: Follow the “absolute novelty” rule, meaning any public disclosure before filing destroys patentability.
  • International agreements: Through the Patent Cooperation Treaty (PCT), confidentiality is maintained during international filings until the application is published.

Because rules vary, inventors planning to market globally should adopt a conservative approach: file first, disclose later. Maintaining strict confidentiality until the initial application is filed ensures broader protection.

Attorney–Client Privilege and Patent Agent Confidentiality

Beyond contractual agreements, the law provides professional confidentiality safeguards. Communications with a licensed patent attorney are protected by attorney–client privilege, meaning they cannot be disclosed without the client’s consent. Similarly, in the U.S., registered patent agents also enjoy limited confidentiality protections under the patent agent privilege, recognized by federal courts.

These privileges ensure inventors can share sensitive details, strategies, and technical drawings with legal counsel without fear of exposure. This legal shield complements contractual agreements and helps inventors navigate the complexities of patent filings securely.

Frequently Asked Questions

  1. What is the Patent Confidentiality Act?
    It is a U.S. law that governs the secrecy of patent applications, preventing disclosure until publication and restricting inventions tied to national security.
  2. How does the Act affect inventors?
    Most inventors won’t encounter secrecy orders, but they benefit from confidentiality protections until their application is published, usually 18 months after filing.
  3. Can I share my invention with investors before filing a patent?
    Yes, but it’s risky. Use confidentiality agreements where possible or file a provisional patent first to preserve rights.
  4. Do other countries have the same rules?
    No. The U.S. allows a one-year grace period, but many countries (like those in Europe) require filing before any disclosure.
  5. Are communications with a patent attorney confidential?
    Yes. Attorney–client privilege and patent agent privilege protect discussions, ensuring your invention details remain secure.

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