IP Information & News

Co-working spaces — keep it confidential

Dr Terence Broderick

By Dr Terence Broderick

Patent Attorney

As a regular co-working space user, one key concern is always at the front of my mind — confidentiality. Co-working spaces are great for independent and collaborative working, offering flexibility for employers and an economical office alternative for start-ups. However, if you’re discussing sensitive information like a new invention, technical process or business strategy, such an open environment poses a huge risk.

Here’s what you need to be aware of, and some simple steps to help ensure that your confidential information remains just so.

Why so serious?

A disclosure of sensitive information can be troublesome. Obviously, if a competitor can overhear your conversations, any confidential information could be used against you, informing their own business strategy. And, no matter who’s listening in, discussing details of an invention or leaving key documents on display in a public place could result in you inadvertently disclosing an invention (before filing a patent application) and potentially depriving your own patent application of validity.

Any disclosure can prejudice the patentability of your invention, as according to Article 54 of the European Patent Convention:

“(1) An invention shall be considered to be new if it does not form part of the state of the art. (2) The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application…”

Despite this obvious risk, the European Patent Office (EPO) has sought to temper panic around such disclosures in its guidelines. The Guidelines suggest that an oral description of an invention can only typically be used to deny a patent application if it has an associated written confirmation; if the EPO can be convinced that the description can be proved; and if it can be shown what was described and when it was described. Emphasis is also placed on the circumstances of the location — for example, was it a factory floor or a public hall.

Simple steps for confidentiality

You can take some reasonable steps when using a co-working space to avoid becoming a hostage to fortune when you pursue a patent application.

1. Give yourself a chance

Co-working spaces often have private rooms which can be used to hold sensitive discussions. If you know you’ll be discussing information that you don’t want others to hear, make sure you hold the meeting somewhere where you can’t be heard.

2. Shush

It isn’t always possible to plan ahead, but if you know that you’re likely to discuss sensitive information, try to keep your volume low. This might seem like an obvious point but it’s easy to get carried away inside a lively co-working space and assume that no-one can hear you.

3. Act quickly

If you suspect that a disclosure has taken place, take prompt steps to file a patent application to protect your invention before a verifiable disclosure can be made. In this instance you should contact your patent attorney as soon as possible to determine an appropriate course of action.

If you’re convinced about a disclosure, this may involve filing your notes as soon as possible at the patent office, alongside an abstract which briefly describes the invention. If you do feel forced to take this path, ensure that you seek to file a top-up patent application after filing your notes. This should be professionally drafted and your attorney should be made aware of the situation to maintain consistency with the earlier filing, so as to preserve the filing date.

4. Clean up after yourself

It’s all too easy to feel at home in a co-working space and forget about the risks associated with leaving documents lying around. In reality, you’re in a public place and it’s crucial to take all your documents with you when you leave. Even if others don’t use the same space immediately afterwards, it’s possible that bigger problems can be caused if, for any reason, the documents leave the confines of the coworking space and become open to a much wider audience.

5. Be vigilant

While you can, of course, expect a degree of privacy, it isn’t always possible to fully prevent documents, emails and the like from being studied over your shoulder. Most people will likely not care about what’s in your documents, but it only takes one individual to disclose your information or post a selfie on Instagram with your documents in the background to cause a serious problem with the patentability of your invention.

It’s not worth the risk

However unlikely it is that someone will disclose your sensitive information, whether inadvertently or otherwise, it really isn’t worth taking any risks whatsoever if your invention or business strategy could be jeopardised.

If you suspect that a patent application has already been filed relating to one of your inventions discussed in a coworking space, it’s important to start monitoring the patent registers to see if an application has been filed by one of your fellow tenants. If you notice that the subject of one of your meetings or the content of a confidential document has been used to file a patent application then, even in the absence of a confidentiality agreement, you may be able to initiate entitlement proceedings to seek to have the rights assigned back to you.

If you need professional advice on how to protect your confidentiality, or take action if a disclosure is made, get in touch with me at tsb@udl.co.uk.

Collaborating with others on inventions? Make sure you read my top tips to ensure confidentiality when sharing documents.

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