Trade Secret Vs. Patent Protection

Many business owners wonder which type of Intellectual Property protection is the best fit for their business purposes?  A “trade secret” is intellectual property that is kept private in order to maintain its financial value in the marketplace.  Examples of trade secrets include: “a formula, pattern, compilation, program, device, method, technique or process.”

Alternatively, a “patent” generally protects a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”  Thus, a creation may receive protection under either patent or trademark law, but not both, due to varying disclosure rules.  Also, there are several types of patents available, including utility, design, and plant patents.

Companies that make it a priority to preserve their trade secrets will go to great lengths to prevent others from misusing or misappropriating their critical information. It is likely that a business will seek out the powers of the court system in order to protect the financially viable benefit that derives from their trade secrets. In cases where trade secrets have been violated, courts may order the culpable party to preserve confidentiality or pay expenses, which often include any damages a business sustains as a result of the misuse of a trade secret.

However, trade secret protection is not without its limits. If a trade secret becomes publically known through an authorized admission, protection may be completely lost.  Additionally, trade secret protection does not protect a business from “independent discovery.”  Independent discovery is when a third party discovers, for example, the formula to a best-selling beverage, on its own.

On the other hand, trade secret protection usually does not terminate the way other types of intellectual property (such as patents) do.  A patent only protects the inventor for a restricted period of time.  A patent license might not be a good fit if the intention is to keep certain data about the creation a secret.  In order to apply for a patent, intricate details about the device in question have to be revealed, and upon expiration, the information disclosed may become free for anyone to use.

An intellectual property attorney is capable of evaluating original works and counseling clients on the various types of protection afforded under intellectual property law. He or she will offer good advice about which type of protection best suits each individual situation.