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Trade Secret or Patent?

What exactly is the difference between a patent and a trade secret? When should you obtain each? The following provides a brief overview of the pros and cons of each. You may already be familiar with the following definitions:

Patent – Patents are used to protect new inventions or novel improvements on current inventions. Patents can fall into three different categories:

  1. Utility Patent – A utility patent protects the function or use of a new and useful process, machine, manufactured article, or any composition of matter.
  2. Design Patent – A design patent protects any new, original, or ornamental design.
  3. Plant Patent – A plant patent protects a new variety of plant.

Trade Secrets – Trade secrets protect formulas, devices, methods, etc. that are used in business and that provide an economic advantage to the user over competitors. (USPTO.gov)


There can be an overlap of available protection between patents and trade secrets, and this often provokes questions among investors and business owners. An important question that is asked is whether one should apply for trade secret or patent protection when both are available. Now, let’s look at the pros and cons of:

Filing Patents

ProsCons
- Patents can be used legally to enforce protection against others from making, using, or selling your invention regardless of how the other person engineered the product.

- A patent protects against others that independently invented the same product, not just those who copy your product.

- The effectiveness of patent protection is not totally dependent on how well you keep the information undisclosed.
- Patents require you to disclose information about the details of your invention to a government entity, which are then available to the public.

- Patents are generally valid for a limited period of 20 years without alterations or a new application.

- Patents can be costly, both in terms of fees and the time the application process takes.

Using Trade Secrets

ProsCons
- Trade secret protection costs much less to obtain. There are often high costs, however, with keeping the information a secret. These costs include the increased risk of your invention being reproduced legally and used commercially or even patented.

- Trade secret protection is immediately enforceable. This means that once your application is submitted and accepted, your intellectual property is protected.

- Trade secret protection has no time limitation. Trade secrets can last as long as you protect the information from becoming public.
- Trade secrets do not prevent others from “reverse engineering” your invention – purchasing your invention and taking it apart to recreate it, nor does it prohibit others from re-inventing your invention using their own creativity.

- If the information protected by trade secrets is legally–inadvertently or with intent–made known publicly, your protection is worthless and others may use it at will.

- Although it depends on the situation, trade secrets are generally more difficult to enforce than a patent.*

* World Intellectual Property Organization (wipo.int)


Conclusion

If you have intellectual property that you want protected, you should consult with an attorney. Consider the type of protection that suits your needs as well as the pros and cons associated with both options. Because our legal team at Sumsion Business Law is experienced in protecting intellectual property, we can help you decide which types of protection you qualify for, and which protection—or combination—is best suited for your needs.

Blog post by Tyler Lindley

Disclaimer: This website, blog post and all related material is for informational purpose and is NOT legal advice; hence it should not be acted upon without seeking advice from a lawyer licensed in your state or jurisdiction. This website, blog post and all related material does not create an attorney-client relationship. Sumsion Business Law cannot ensure the accuracy of any third-party links.