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July 12, 2023
John Rizvi, Esq.

If I Hire a Patent Illustrator to Create Drawings, Should They Sign a Non-Disclosure Agreement NDA?

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If I hire a patent-drawing artist, should I have him sign a nondisclosure agreement beforehand?

So yes, but remember the worries, the problems with a nondisclosure agreement. So, if this illustrator signs it, and he doesn't steal your idea himself, but leaks the idea to a third party, then you have that risk that somebody else may file at the Patent Office first and trump your rights. So, I would not advise disclosing an idea to a patent illustrator under a nondisclosure agreement. What I would recommend is disclosing it under attorney-client privilege with a patent attorney. And then the patent attorney will direct the drawings by their own patent illustrator, who is bound also by attorney-client privilege. So attorney-client privilege, a lot of people don't realize, it applies to inventors just as much as it does to other areas of law. We all have seen the strength of attorney-client confidentiality in criminal cases. So if someone commits a crime, and they disclose to their idea, that they're—where the body is buried or where the gun is, or whether the fingerprints are on the knife that the police are going to find—that attorney cannot disclose that to anyone. It's completely attorney-client privileged and confidential. They say in the famous OJ Simpson trial that, with the exception of OJ Simpson himself, the only person that really knew what happened would be his attorney, Johnnie Cochran. And he took that confidentiality to the grave with him. Because attorney-client privilege is such broad protection and so strong in its enforcement, that an attorney can not only be civilly liable for a breach, but there's a—he could lose his license, as well. So I would reveal, if you're going to have drawings prepared, it's always better to reveal the idea to an attorney. Have the attorney dictate the drawings with an illustrator that's covered under the same umbrella of attorney-client privilege, but not rely just on a nondisclosure agreement.

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