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Non-Disclosure Agreement / Confidentiality Agreement

Published by Frederick Noble on 29th August 2013

Reggae Reggae Record Keeping

“Levi Roots”, otherwise known as Keith Graham, shot to fame in 2007 when Peter Jones and Richard Farleigh of BBC2’s Dragons’ Den bought a 40% stake in his “Reggae Reggae Sauce” business after a memorable performance by Levi and his guitar.   More recently, Mr. Graham’s successful defence in the High Court of an allegation of breach of confidence has provided a timely reminder of the need for written non-disclosure agreements when discussing trade secrets with business associates.

Anthony Bailey claimed that he was the real inventor of Reggae Reggae Sauce, and had disclosed the recipe to Mr. Graham on the understanding that they would jointly commercialise the sauce and divide the profits equally.  Despite calling seven witnesses during a trial lasting nine days, Mr. Bailey was unable to advance any real evidence of the alleged agreement, or of his claim to the recipe.  The Judge in the matter determined that he could “not safely rely upon the evidence of either claimant or defendant...”  In short, the case boiled down to one man’s word against the other’s.

It is impossible to know whether Mr. Bailey really did invent what became “Reggae Reggae Sauce”, but in cases such as these the burden of proof lies with the Claimants.  With no evidence to the contrary, the Court had to assume that there had been no agreement.   If Mr. Bailey had invented the sauce and disclosed the recipe to Mr. Graham, he would have been wise to require the latter to sign a written non-disclosure agreement (NDA).

To obtain a patent for an invention, it must never have been previously disclosed or made available.  However, there may be good reasons why you need to discuss your idea with others during the early stages of development.  You may not yet have finalised all the technical aspects of your invention and therefore are not yet in a position to file a Patent Application – but in order to develop it further you might want to work with others.  Alternatively, you may wish to protect something such as a business method which will never be patentable but nevertheless constitutes a trade secret which gives you an advantage over your competitors.  In such cases non-disclosure agreements allow you to disclose your idea whilst imposing a duty upon the other party to keep it secret.

A Patent Attorney can help you to draw up an appropriate Non-Disclosure Agreement, which is also known as a Confidentiality Agreement or a Confidential Disclosure Agreement, to ensure that you are protected when disclosing ideas to others.  If you are asked to sign an NDA you may also want to consider taking professional advice to ensure that you fully understand the duties and restrictions which you are being asked to sign up to.

Related Pages: Non-Disclosure Agreement, Confidentiality Agreement

Patent Attorney - Frederick Noble
This article was written by Frederick Noble of Albright Patents.

Frederick joined Albright IP in January 2012, and is involved in the drafting, filing and general prosecution of patents.  He holds a master's degree in Engineering and Computer Science from the University of Oxford, and his technical interests include communications technologies, electronics and computing.

Frederick Noble
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