Contracting with a prototype maker in China from the USA I have a product that I want to build a prototype for. How do I protect myself if I am contracting a company in China to develop the product? I am in the US. How do I prevent them from stealing my idea, which will be in patent pending state?
Protect against what? A US patent would, theoretically, let you try to stop anyone in the US from importing a product that infringes one of its claims. To try to stop manufacturer in an other location from producing a product and selling it other than in the US you either need a patent in the location if manufacture or or selling. Of course you can also try to accomplish this by contract with the manufacturer. They may honor a contract and to not sell other than to you. But if are wildly successful you won’t be able to stop a different manufacturer in China, Vietnam or anywhere else. One bit of advice might be to get good IP coverage for anything made, sold, offered for sale, imported or used in the US via US patents and be content with wild success in one of the largest markets protectable under one patent. Some people advocate breaking your design down into interconnectable components and have different makers in different areas make each with final assembly in the US. Others say just go fast and make money while you can. Also you can license to a big company with some clout and money for attorneys. You get much less per unit but push many costs and hassles to them.
What are our possibilities here? You could be sued for damages in Mexico, the country of origin of the copyright or any of the other signatories of the Berne Convention. You could also be charged with a criminal offence but that is less likely. how much can we get away with? Not a legal question. What you are proposing is illegal - how likely your getaway plan is to work is not for me to say. Is there any advantage on us being on México? No Is there any advantage on picking any either Dragon Ball or League of legends because of the country they are in? No Can they stop us from doing it? Yes
According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case).
Licencing agreements The company producing these has successfully negotiated a licencing agreement with the IP holder to use the IP. These are extremely common. Subcontracting They have actually been commissioned by the IP holder to make these things for the IP holder e.g. for the IP holder to sell in their own outlets. As part of that agreement, they are also allowed to sell on their own behalf. Piracy They are breaking the law and hope they will be undetected, not worth prosecuting or operate out of pirate jurisdictions which will not enforce foreign judgements.
Intellectual property is something unique that you physically create. An idea alone is not intellectual property. For example, an idea for a book doesn’t count, but the words you’ve written do (from the UK government website). This is a universal principle: having ideas is not protectable (are you quite sure that nobody else has had the same idea, or ever will?) So unless you have put some work into producing a specific implementation, your idea can be used by anybody who thinks of it.
If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well.
It is likely that the law applying will be both that of the USA and your country. If you went to court this would be one of the things you argued over. For example, Australian Consumer Law applies to any goods or services sold to a customer in Australia irrespective of where the vendor is located. Your jurisdiction may have similar laws. At first blush you must comply with the term of the contract preventing reverse engineering. They would be within their rights to terminate the licence if you don't. However, they probably have an obligation under your equivalent to the ACL to supply a product that: is merchantable is fit for purpose does what it says it will do If it doesn't then you have a right to terminate and get your money back, sue for damages and your country's government may prosecute.
A basic rule of trademark law is that a trademark is protected only for use in the same industry, or in regard to the same general sort of thing. "Maxwell House" for example, is the name of a brand of Coffee, and no doubt a trademark. If A business used it as the name of a brand of mobile home, it would not infringe the mark of the coffee brand. "Java" as a term for coffee , has been slang for any and all coffee at least as far back as WWII. I doubt that it is a currently active trademark in any case. It is, however, the name of a currently active programming language. Calling a new computer technology "Java" would probably infringe that (although the makers of javascript, a quite different computer language, seem to have gotten away with it). But it is hard to see how a realty company would so infringe. Of course there might be details which would cause this name to be infringing in fact, that I have no way of knowing. You could play safe with Sumatra Realty instead. Evin a quickly dismissed suit for trademark infringement could cost a startup time and money that might be a fatal handicap.