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You Have an Idea; Now What?

You Have an Idea; Now What?

Ideas are the seeds of all progress. But just like seeds, your bright ideas are delicate and without value until you grow and cultivate them into useful products. And between creation and time to market, a fabulous idea can be stolen, lost, or destroyed by any number of means. 

Understanding the vulnerabilities of ideas and how you can attempt to protect them is vital to any business that trades in technology or progress.

Ideas are not in and of themselves subject to legal protections. So if you don’t take proactive steps to protect them, and they are stolen or used without your authority, you may have little legal recourse. 

There are several methods of securing some protection for your ideas, including trade secret, patent and copyright.  Each is limited and, generally, each requires that you first reduce your concept to form — a drawing, actual product, or something in writing. So your first step is to quantify your idea or concept into something more tangible.

Trade Secrets
A trade secret is information, not generally known, which the owner takes efforts not to disclose and which has value.  By not disclosing the idea, the trade secret retains its value.  Under Maryland law, the Maryland Trade Secret Act recognizes the value of business trade secrets and provides strong remedies and legal relief for the owners of trade secrets against offenders who wrongfully obtain or use the information.   

But keeping your information secret creates a practical problem: how to have others invest in this new idea to take it to the next phase without destroying trade secret protections? 

A carefully crafted contract known as a non-use/non-disclosure agreement can allow a trade secret owner to pass certain information to someone else without causing the information to lose its value as a trade secret. 

A caution: these agreements are often poorly crafted and do not prohibit non-use by the receiving party, creating substantial problems for the owner of the trade secret.

And when you’re ready to publicly sell or publish the information, the trade secret protection is destroyed.  Once published, the information falls into the public domain and no longer has the same legal protections.

Standing in direct opposition to trade secret protection is a patent. Patents can be obtained for certain types of new and novel processes, methods, product designs and compounds.

Generally, a patent must be filed within one year of its first publication, but unlike trade secrets, once a patent application is filed, the information is publicly available. 

In exchange for the public disclosure, if a patent is granted, the owner obtains a 20-year monopoly on the process, method, design or compound.

Unfortunately, the patent process does not cover all ideas, is lengthy, and can be expensive.  In addition, a patent can be declined, and even if granted must be enforced, sometimes at great expense to the owner.

And while patents create a monopoly, if granted, there are limitations on that monopoly. Subsequent advancements of the same technology by others may be patentable over the objection of a patent owner. 

Patent owners often find that subtle new developments to their patent have been registered by others.

Copyright is an appropriate vehicle for many forms of written and recorded materials, also called “works.”  Ideas reduced to written form which cannot be patented are usually copyrightable. 

In addition to the traditional printed word, software, and original works of art may be registered.

Basic copyright protection is extended once a work it is created and fixed in a tangible form.  It gives the owner a limited period of ownership over the commercial exploitation or “publication” of the work.  

No registration is required, but it is certainly recommended.  More substantial protections, including statutory damages and attorneys fees, can be extended once the material is registered with the Library of Congress. 

If you have material you’d like to copyright, don’t delay. Copyright owners often find themselves trying to register their works after their rights have been violated. And if a copyright is infringed prior to registration, the owner usually cannot take advantage of these powerful statutory provisions. 

Unlike the patent process, copyrighting is relatively quick, inexpensive and certain. It should be initiated within 90 days of the first publication of any materials that are subject to copyright protections.

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