To enforce a NDA, you need to prove on "a balance of probabilities" that the recipient is in breach of the agreement (i.e. that he disclosed or used the confidential information in breach of the NDA). If proved, the Court may:
However, this merely closes the door after the horse has bolted ‐ no matter the relief the Court provides, your information is no longer secret.
To grant patent rights, most countries require an invention to be "secret" at the time of filing the patent. To maintain secrecy, all disclosures of the invention before filing a patent application must be made under a NDA. Generally, this is the main reason for concluding NDAs.
A few countries excuse public disclosures of the invention prior to filing a patent, PROVIDED THAT such public disclosures were "wrongful" (i.e. in breach of a NDA). This is a secondary reason for concluding a NDA. Where permitted, you must file a patent "without undue delay" following such wrongful disclosure. However, you will also need to prove that the public disclosure was made by the recipient.
Accordingly, a breach of a NDA seldom ends up in the Courts.
The problem remains: you need to prove on a balance of probabilities that the recipient disclosed your idea to the public … and don't rely on him raising his hand and proclaiming "mea culpa".
The SuperNDA solves this problem ‐ you won't need to prove how your idea was leaked publicly. If you obtained a SuperNDA before disclosing your idea to the recipient, and the information subsequently falls into the public domain, you need only file a complete patent within 12 months of obtaining the SuperNDA. You do not need to investigate the source of the leak or to institute legal action against the recipient. Just cut ties with the recipient. In the meantime, the SuperNDA will prevent the recipient from using your idea / information. And, after your patent has been granted, you can also sue the recipient for patent infringement.
Not only does the SuperNDA offer a far greater degree of protection than a NDA. It also makes enforcement of your rights much easier.
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