Mark Pestronk
Q: I have a great idea for an online travel business that no one has ever thought of before. I would like to approach the major online agencies and propose a joint venture to turn my idea into an actual business. How can I protect my idea from being copied after I reveal it? How can I prevent the online agency from falsely telling me that they have already thought of that idea and are in the process of developing it?
A: A mere idea cannot be protected unless the party that hears it has already signed an agreement that specifically obligates the party not to disclose or use the idea that you are going to disclose.
However, I have never heard of a business agreeing to sign such a contract before you disclose the idea, and I doubt that any large business would ever agree to sign it. In the absence of a contract, ideas or concepts are not protectable by any intellectual property law, such as the laws protecting patents, trademarks, copyrights or trade secrets.
Even if you came up with a clever name for your application and trademarked it by filing a trademark application with the United States Patent and Trademark Office, anyone could copy your concept and use another name for it. Even if you treated your idea as a trade secret, it would have no protection from a business that wants to steal it after you disclose it, as the mere act of disclosure removes trade-secret protection.
Even if you wrote down the idea and copyrighted it by filing a copyright application with the Library of Congress, the law would protect only the words that you used and not the idea. Anyone reading what you copyrighted could simply describe the idea in a slightly different way, and you would be unprotected.
If the online agency refuses to sign a nondisclosure and no-use agreement, which I strongly suspect it would, the only thing that might protect you is to try to develop an implied contract based on what occurs in the meeting.
Let's say that the online agency refuses to sign anything, but then you reveal your idea anyway, and the agency states something like, "that's a good idea, and if we develop it we will be sure to get you involved."
Right after the meeting, if you send an email recapping what occurred, including any commitments that the company agreed to make, you could argue that you have an implied contract to include you in any development of the idea. However, if the company responded by stating that it did not intend to enter into any binding commitments, you would probably lose any case based on a theory of implied contract.
Many large businesses turn the tables on people who come in with ideas; before you disclose anything, the companies require you to sign a "submission release" agreement, under which you give up all rights to the idea unless the company agrees otherwise. Needless to say, if you sign such an agreement, then the implied contract approach will not work.
Your best bet is to try to put the idea into some tangible form before you disclose it.
If the idea is a particular way of selling travel via the internet, you could develop a website prototype, and you might even be able to get one or more patents such as Priceline did with respect to its system.
You should start now by consulting a patent attorney who can explain the steps involved. Under the 2013 patent law, the first person to file for a patent will prevail over the first person to invent, so you should get started soon.
It takes two or three years to get a patent, and it can be costly, but it will protect your idea from being copied.