A non-disclosure agreement or NDA is a legal agreement, by two or more parties, not to divulge information that they intend to share in the course, e.g. of commercial negotiations. There are a number of similar names for this sort of agreement, including confidentiality agreement, confidential disclosure agreement etc.

Non-disclosure agreements are used in a wide variety of circumstances, especially during commercial negotiations. They are particularly important in early discussions about inventions, as in the absence of such an agreement you may be deemed to have made your invention public, and that will preclude you from getting a patent. If you wish to conduct negotiations with a prospective commercial partner or licensee, and you are not able to file your patent application first so that you have a “patent pending”, an NDA is essential. Ideally, however, you’ll have both a patent application and an NDA in place before you start commercial negotiations.

Alternatively, if your intellectual property cannot be protected by patenting, e.g. because it’s not patentable subject matter or because you’ve decided to adopt a trade secrets strategy – i.e. to keep your IP secret – then non-disclosure agreements may be even more important.

NDAs may be mutual – where both parties agree to respect each other’s confidential information on an equivalent basis – or unilateral or one way – where one party, divulging information to another party, asks that party to undertake not to reveal information. Be careful to put as little detail about your IPR or trade secrets in the NDA itself, as your prospective commercial partner may decide not to sign it. Be aware, also, that contract law is a specialist area, and (if you’re not a legal specialist) you may be inclined to include provisions that would make the agreement unenforceable. A confidentiality agreement with indefinite terms, for example, is quite likely to be unenforceable.

If your business is innovative or holds commercially sensitive information you should probably also consider the provisions you have in your contracts of employment and service agreements to make sure that members of the business are also obliged to respect your confidentiality requirements.

The UKIPO website has a useful guide to NDAs - and it is good background reading. As this document itself says, however, there is no “one-size fits all” NDA, and you may wish to consult a professional advisor like a patent attorney or a solicitor specialising in IP.