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Why confidentiality? (Part 2)

What-is-a-non-disclosure-agreementBy David French 

In Part 1 last week, we addressed confidentiality agreements and nondisclosure agreements (NDAs), particularly the role that these documents serve in protecting patent rights. We ended Part 1 with the question, “But what is a disclosure made in confidence?”

It’s clearly established that disclosures made to professionals such as patent agents and patent attorneys are assumed to be in confidence. Also, if the parties have agreed that a disclosure is confidential, then the necessary standard of confidentiality has been established. And then there are other cases where the circumstances imply an understanding of confidentiality: Disclosures made to a draftsman or to an industrial designer to improve the product, disclosures made to find out whether there are public regulations that the invention must meet, disclosures within the family, and numerous other cases where a special relationship exists. The problem of establishing confidentiality arises when conversations occur between business persons in the context of arms-length relationships, such as between the inventor and a potential purchaser. Are these exchanges assumed to be confidential?

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