Previously, we looked at some of the basics of patent protection. As we noted last time, patent protection is certainly useful and valuable for what it does, but many businesses also make use of trade secret protection to ensure competitors are unable to benefit from valuable business information.
In one sense, comparing patent protection to trade secret protection is not helpful since not everything that may be protected as a trade secret meets the criteria for patentability. In other words, it isn’t always possible to have valuable business information patented. This can happen when an invention, discovery, or design is not sufficiently novel to warrant patent protection. On the other hand, inventions, discoveries and designs which could otherwise be patented can also simply be protected as trade secrets. In these cases, weighing the benefits and disadvantages of patent and trade secret protection can be helpful.
There are several factors to consider when it comes to deciding between patent and trade secret protection. With trade secrets, the advantages are that: there are no formalities or costs; they take immediate effect; and they are not limited in time. The disadvantages of trade secret protection, though, are that: trade secret protection does not provide the right to exclude third parties from making commercial use of the information when they validly develop the information (i.e. without misappropriating the trade secret); once a trade secret is public, its holder no longer has an exclusive claim over it; it can be more difficult to enforce a trade secret than a patent.
In many cases, it isn’t so much a question of deciding between trade secret and patent protection, but of determining how urgent a need there is for patent protection. Protecting valuable business information as a trade secret can be done relatively quickly, and it can serve as a means of protection until an appropriate patent can be obtained. The urgency with which patent protection is sought for information protected as a trade secret depends on the nature of the information and other factors.
Working with an experienced attorney can help a business to determine how best to protect its valuable information, and can help ensure that whatever means of protection a business utilizes, this protection is properly enforced when threatened.