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Lesson # 106 Just Because You Put Confidential Is it Really Confidential?

rogerbrown's Avatargold

Thought this would be an interesting topic to discuss. I get around 35 to 45 emails a day from Inventors asking questions about inventing. Out of that grouping about 10 will have disclaimers like these examples below. Now the question is since they are sending me the email unsolicited by me and I have no idea what is in their email until I open it and the disclaimer is generally at the bottom of the email, meaning you won't see it until you have read the email.... is it legally binding? Because in order for it to be binding shouldn't both groups (The sender and receiver)  agree to the terms prior to the information being revealed just like in an NDA? Otherwise couldn't I just add a clause at the bottom of every email I send out saying that by reading the above email you agree to NEVER pursue any products in the same market as myself?

"The information contained in this communication is confidential, private,proprietary, or otherwise privileged and is intended only for the use of
the addressee. Unauthorized use, disclosure, distribution or copying is strictly prohibited and may be unlawful."

Or

"Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material."

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sprinklerbuddy's Avatar

That's just some crafty lawyer talk that many have adopted because it makes them feel smart. lol

 

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rogerbrown's Avatargold

Leo unfortunately that's very true. Another example I have seen is where inventor put the word confidential on their sell sheets and sent them to companies whose policy is that they only look at patented items. And the inventor thinks that protects them from the company using their idea without compensating them which is far from the truth.

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crystaldiane's Avatargold

Hi...what if any text would you recommend? I usually just put my copyright notice and a soft disclosure...please do not distribute without permission...maybe its not necessary at all? 

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rogerbrown's Avatargold

Before submitting any sell sheet or information on your product that you feel is confidential I would recommend a NDA be signed. 

I send a quiry email first if I don't already know their process or policy for submitting ideas to find out what is involved so I know if it is in my best interest to use them or move on.

If you look at many companies websites they state any unsolicited ideas are fair game for them to use without compensating the inventor.

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jdowney9000's Avatar

Are you confident in your confidentiality?

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rogerbrown's Avatargold

Unfortunately many Inventors rely on clauses and disclaimers they found on the internet that are not enforceable.

If company X has listed on their website that they will use any idea sent to them they deem marketable that is not covered by an issued patent and you send them an idea with either of the clauses above who do you think will win a court lawsuit?

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rogerbrown's Avatargold

PLEASE take the time to read the policies of any company you send your idea to for consideration of licensing. Had an Inventor contact me this morning that read this thread and had an issue with a company they sent their idea to a month ago. They wanted to know how to remove their idea from the company they sent it to because they went back and actually read through the company's policy and saw a clause saying any unsolicited material is considered donated to the company and therefore the property of the company if not covered by an issued patent.

They are now in a difficult position. The company has not said they have interest or no interest in the unsolicited submission. So the Inventor does not know if they plan on using their idea or could care less. So, do they file a PPA in hopes the company is not interested? Do they just forget the idea and move on to the next one? Do they contact the company saying they want to withdraw their submission to them? If the contact the company and ask for the withdrawal what do they do if the company says they are running with it and thanks them for the idea?

I am constantly beating the drum about doing your research up front and making informed decisions based on that research. I agree with everyone that reading the policies, rules, contracts, etc is a boring task, but these things are the main ones that will dictate if you are covered and how or if you will be compensated. So unless you are willing to give your ideas away for free you need to take the time to READ and UNDERSTAND what you are signing or entering BEFORE you do it.

It is hard to complain you were ripped off by company X when you did not read what you were signing. You shouldn't complain you got a RED X on your submission to the Tupperware product search looking for new kitchen storage items when you sent in a Bicycle pump idea because you did not read the product search criteria. And that happens more than you know.

There is an old saying "You get what you put into it"  If you approach it sloppily don't expect quality.

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mmmbopingmommy's Avatar

This may sound bad but I really don't care if someone takes my ideas. That's probably the only way they will ever get done is by someone who is capable.

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kdc's Avatargold

I've worked for my company since December as a collector. I used to be the Quality Supervisor and trained the collectors in FDCPA and State Laws for their sister company before they outsourced the company. We DO have to give the tape disclosure, 'this call is being recorded' on every contact. However, they seem to think it's OK to give the disclosure anytime before the call ends. They don't seem to realize, the purpose of giving the tape disclosure is because the other person has the right to tell us, they don't want to be recorded, in which case the call would be transferred to a supervisor with a non-recording line. There is no point it disclosing it at the end of the conversation...they might as well not state it at all. I always state it at the beginning of the call before disclosing any acct info to them. I've had people who was ok with being recorded, but then asked to be transfered to a non recording line when they were ready to give their credit card or checking info over the phone for payment. That's no problem for me. But, this company better think about it before they get sued.

Sarah Mann
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rogerbrown's Avatargold

Kathleen, I agree, they are opening themselves up to a lawsuit if they get the wrong person who decides to go after them.

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rogerbrown's Avatargold

Got an interesting email yesterday from an Inventor wanting my opinion on their product idea. He stated it was patented and had all his material marked "Confidential" as well as "patented". I wanted to read the claims from his patent and was surprised to see the patent was expired due to non payment of fees. When I brought that to his attention he agreed it was expired but insisted that since he marked all his material confidential he was still covered. When I asked about him stating it was patented, he said he was not lying because it "was" patented at one time. He said he did not say it "is" patented. 

If you owned a company would you want to do any business transaction with this individual? Also, would this make you wary of working with any Inventor?

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rogerbrown's Avatargold

Update, the above Inventor got back to me on the response he got from a company he sent the same material as he did me. He said they rejected his idea and stated they would not be interested in future submissions from him. He said they mentioned his patent was expired and he wanted my opinion if I thought they rejected him based on his expired patent or the idea in general? I told him probably for both since his patent is expired it is not protectable and open for anyone to use. And I am sure they didn't like his approach, which appears decieving. 

Sarah Mann
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kdc's Avatargold

Update on my comment above. The company is finally realizing what I've been  trying to tell them. Today they had a meeting with all of us and they have changed our 'opening' for all calls and worded it so the tape disclosure is the first thing we say.

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rogerbrown's Avatargold

I believe that is a good move on their part.

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rogerbrown's Avatargold

Here is another example of a company that tells you upfront marking things confidential does not matter to them. On the other hand I have seen companies that say to mark everything you send them confidential. So, again it is important that you as the Inventor READ and UNDERSTAND what you are signing and agreeing to. Look at the portion I marked in bold below. So, does the Inventor have any argument if they ignore this statement?

Applied Ventures Submission Process:

To submit your idea or concept for consideration, you must agree to terms below and complete the submission form with an Executive Summary of your business plan. The Executive Summary should include:

  • Biographical information of key management
  • Description of the product and/or service
  • Explanation of your market, competition and differentiation
  • Funding history and plan

Once we receive the information, it can take 2-4 weeks for the initial review process. Upon completion of this initial review, you will either be asked to submit additional information or informed of our decision.

Please do not disclose any confidential information to us.

By submitting this form, you agree and represent to us that any information or data that you provide to us ("Information") is considered non-confidential and non-proprietary to you or any other party, and Applied Ventures has no obligation towards you or any other party to protect such information. Any information you transmit shall be considered non-confidential and non-proprietary information regardless if marked "confidential" or "proprietary." Applied Ventures will have no obligation of any kind with respect to such information. By communicating with Applied Ventures, you acknowledge and agree to the foregoing terms. If, after consideration of your non-proprietary disclosure, we wish to have further discussions, we may wish to enter into a confidentiality agreement with you.

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ring-go's Avatargold

Is it ever confidential?

Not unlike locks, NDA's are only for honest people...first to file crocodile..!  

Sarah Mann
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rogerbrown's Avatargold

Michael, I agree. An NDA is only as good as the people using it. The same goes for contracts you might sign or any deal for that matter. That is why you need to do your best to have a paper trail with any company you approach and use the "Trust but verify" method.

Sarah Mann
Michael Heagerty
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rogerbrown's Avatargold

I would also mention that Inventors need to take a moment and pause before clicking on that "By clicking on the submit button you agree to the terms of this agreement" and actually read the Terms of Service. I feel confident that the majority of people skip right over that and are the first to complain when it comes back to bite them in the butt.

In most of those blocks you can copy and paste that Terms of Service into a Word document and print it for easy reading. Remember it is your butt you are covering by doing the boring work.

Sarah Mann
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sjane722's Avatargold

Guilty as charged.

Thom C
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rogerbrown's Avatargold

I am sure you are not alone in that boat.  LOL

Sarah Mann
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