What to Do Before You Disclose

Written by JGPC Business Law on March 25, 2017. Updated July 2026.

Author:  Gerald R. Prettyman, J.D., LL.M.

Before discussing an invention with investors, manufacturers, or potential business partners, inventors should take steps to protect their intellectual property. Documenting the invention, consulting an intellectual property attorney, developing an appropriate filing strategy, and using confidentiality agreements when appropriate can help preserve valuable legal rights while allowing inventors to move their ideas forward.

Key Takeaways

• Document your invention in writing before discussing it with others.
• Consult an intellectual property attorney early to determine which forms of legal protection may apply.
• Different aspects of an invention may be protected through patents, copyrights, trademarks, trade secrets, or confidentiality agreements.
• File appropriate patent applications before making public disclosures whenever possible.
• Use NDAs and confidentiality agreements strategically when sharing sensitive information.
• Consider a patent search or freedom-to-operate analysis before investing heavily in development or commercialization.

A question high on the list of first questions asked to a Patent Attorney is “what do I need to protect my idea before I talk to an investor, (a manufacturer or licensor), etc. The answer, or answers, as an inventor should take multiple steps, are not complicated.

The first step is to record the idea in writing. While many inventors are reluctant to put the idea in writing with the thought that doing so limits them to only what is in writing, not having the idea in writing violates the rules of proof. You can only prove the idea is yours, your date of invention, and the whole of the idea, if you put it in writing! You will also need the idea in writing to use the next steps to protect the idea.

The second step is to review the idea and your written notes with a Patent and Intellectual Property lawyer. There are many reasons for this review. For one, a patent protects only certain ideas and only certain aspects of those ideas. A patent can protect a tangible and useful item, but there are people who argue that some software is not tangible (i.e., abstract) and is therefore not protectable. Software can, however, have creative elements, and those are protectable by Copyright. Then there are elements of ideas that could be protectable by Trademark if properly used. Your Patent and Intellectual Property lawyer might also discuss with you the elements in the idea that are not protectable by patent, copyright, or trademark, but might be protectable as a Trade Secret or with a Confidentiality Agreement. Make sure you prepare a chart of your idea, your filings, and when to file for them. You should also discuss with your Patent Attorney what you need to hold back from disclosure and note this information on your chart. Almost never does an investor or manufacturer need to know everything, or at least until the other person has signed a well-prepared Confidentiality Agreement.

Use NDAs Correctly and Sparingly

Some inventors believe they need a Non-Disclosure Agreement (NDA) with a lawyer. There are three reasons why this is false. First, California lawyers are bound by penalty of law to protect client information; second, most NDAs lack adequate enforcement measures; and third, you are hiring the lawyer to ultimately help you properly disclose the idea. This is particularly true with patent lawyers.

The third step is to file a provisional patent application for the functional aspects of your invention. The reason for filing a provisional patent application is that (1) the U.S. and every other country requires the filing of a patent application before public disclosure or you forfeit the right to a patent, and (2) even if the idea currently lacks a patent protectable feature, you may develop a patentable feature, but by not having a patent application on file, you risk forfeit of the right to a patent.

Discuss Patent Application with a Patent Attorney

The fourth step is to discuss a design patent application with your patent attorney. Design patents protect the appearance of an invention, but (1) a provisional patent application does not apply to design patent applications, and (2) the allowed time frame for filing a design patent application is much less than for a utility patent application. As with all patents, if you fail to file a design patent within the required time, you forfeit the right to a patent.

The fifth step is to use your chart as a confidential guide. Make sure you do not disclose your trade secrets to anyone, including investors, until after they have joined you, and make sure you have a solid Confidentiality Agreement or NDA. Note that these Agreements are distinct as there are multiple varieties. An NDA, for example, may be for unilateral disclosure, bilateral disclosure, performance-related, employment-related, for trade secrets, non-compete related, or for a patent agent should you use one. (Note: patent agents are not bound by lawyer confidentiality rules). Be sure to tell your patent lawyer of all the people to whom you plan to talk.

Lastly, you might consider a Freedom to Operate (Patent Search) review. This step is to assist you in knowing whether your invention may infringe on someone else’s patent. While there are many companies that sell this service, you can also get this service as a free add-on by filing a regular (non-provisional) patent application. After all, the job of the Patent Examiner is to search for earlier filed patents relevant to your invention.

Once you cover your steps, you are ready to disclose. Good Luck!

Frequently Asked Questions

When should I speak with a patent attorney about my invention?

Ideally, you should consult a patent attorney before publicly disclosing your invention. Early legal guidance can help preserve intellectual property rights and develop an effective protection strategy.

Should I write down my invention before meeting with an attorney?

Yes. Documenting your invention helps establish a clear record of your concept, supports the patent application process, and provides an organized starting point for discussions with your attorney.

Do I need an NDA before discussing my invention?

It depends on who you are speaking with and the purpose of the discussion. In many situations, an NDA can provide valuable protection when sharing confidential information with investors, manufacturers, contractors, or potential business partners.

What types of intellectual property protection might apply to my invention?

Depending on the invention, protection may involve utility patents, design patents, copyrights, trademarks, trade secrets, or contractual confidentiality protections. Many inventions benefit from a combination of these strategies.

What is a provisional patent application?

A provisional patent application allows inventors to establish an early filing date while obtaining “patent pending” status. It also provides time to further develop the invention before filing a non-provisional patent application.

What is a freedom-to-operate search?

A freedom-to-operate search evaluates whether a product or invention may infringe on existing patents owned by others. Conducting this analysis early can help identify potential legal risks before significant investments are made.

Can I disclose my invention to investors before obtaining a patent?

In some circumstances, yes, but doing so without an intellectual property strategy may jeopardize valuable rights. Before presenting an invention, consult an experienced patent attorney to determine the appropriate combination of filings and confidentiality protections.