Michael J. Foycik Jr., Esq.

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So your new idea might not be patentable. Don't let that stop you! Here's some tips on what to do when your invention is not patentable.

Tip one: mark everything “confidential” and protect it under trade secret law.

Tip two: anything can be a trade secret. It just depends on the person seeing it. If it's new to them, and it's marked confidential, then it's a trade secret.

Tip three: a trade secret is probably better than a patent when it comes to those you have direct contact with. This is helpful if the idea is misappropriated by a retailer, distributor, developer, investor, and anyone else who sees the idea through you.

Tip four: file a provisional patent application (“PPA”). It documents your trade secret, the date of filing, and the ownership. As a government record, it is evidence. Few things could be as good.

Tip five: mark your materials with a copyright symbol. It triggers at least some degree of copyright protection in many cases. This is done by use of the copyright symbol followed by the date and owner. Here's a made-up example: © 2014 ZYX Corp.

Tip six: use the trademark symbol on key terms/phrases to gain trademark rights. Trademark rights depend on actual use, for example here's a made-up example: ZYX Dessert TM . Here's another example: ZYX Dessert is a trademark of ABC Corp.

Finally, consult a patent attorney if at all possible. Sometimes an invention may be patentable, even when it may seem unlikely. Some factors that might make a seemingly old idea rise to the level of patentability are: a new use for an old product; the new idea is for a product in a crowded art; the new idea is an improvement; among others.

This is not legal advice – for that you'd need to consult a qualitifed IP attorney to advise on patents, trade secrets, trademarks, and/or copyrights.

The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.