Can I openly discuss my idea?
Briefly, no—secrecy is important. Any public disclosure of your new idea potentially affects its patentability. “Public disclosure” encompasses any non-confidential disclosure, and includes written or electronic communications, public oral disclosures, public demonstrations, public use, and can include offers to sell a product or actual sales. Non-confidential disclosure to even one person, whether in Canada or elsewhere in the world, may be considered a public disclosure.
One of the requirements for obtaining a valid patent is for your idea to be novel. If the idea has been publicly disclosed, it is no longer considered novel, and therefore does not meet this requirement for obtaining a patent. In some countries, public disclosure of the idea by any person, including the patent applicant, before filing a patent application destroys novelty. This means that in those countries, once you have publicly disclosed the idea, you cannot obtain a valid patent.
Some countries, including Canada and the United States, provide a grace period after public disclosure by an inventor within which the inventor can still validly file a patent application. The length of the grace period and the requirements for relying on it varies between countries. In Canada, the grace period permits disclosure by the applicant or a person who obtained knowledge from the applicant up to twelve months prior to the date of filing the Canadian patent application.
We understand that there may be situations in which you must discuss your idea with someone else before filing a patent application. For example, you, as an entrepreneur with a new idea, have just set up a company and you need to discuss your idea with potential investors in order to obtain funding for your company. In these circumstances, you should not simply disclose your idea to potential investors. Rather, to avoid having that disclosure be considered a public disclosure that could destroy your patent rights, it is important to have a non-disclosure agreement (“NDA”) signed by such persons.
NDAs are agreements by which people or companies agree to keep certain information confidential. However, NDAs must be used with caution, because information that becomes available to the public even through a breach of the NDA can still impact your patent rights, leaving you with only the option to sue the person who breached the NDA.
Please note that even if you have filed a provisional patent application, there can still be risks in publicly disclosing your invention. Please see our primer on provisional applications for more information.
You may also be interested in…