In the case of patent vs. trade secret, there is no one right answer. For some inventions, patent protection makes the most sense because a trade secret isn’t possible. In other cases, a trade secret is the best bet. First, let’s understand the difference between the two.
A patent is a type of intellectual property that protects inventions. The patent is granted by the United States Patent and Trademark Office (USPTO). It allows the owner of the patent to exclude others from making, using, selling, or importing the invention. In order to obtain a patent, the invention must be useful, novel, and non-obvious. It also needs to be a patentable invention. According to the patent laws, the invention must be a process, a machine, an article of manufacture, or a composition of matter. The patent can provide protection for 20 years from the date of filing. While a patent is very strong intellectual property, there are some downsides. For example, the patent application must go through a thorough and lengthy examination. The patent is also open to the public to inspect.
A trade secret is essentially any information that gives a business a competitive advantage and is kept as a secret. One upside to the trade secret is that it can be held as a secret for ever as long as it remains a secret. Some great examples of trade secrets are the formula for Coca Cola®, the chicken seasoning recipe for KFC®, and the formula for WD-40®. Other things that may be kept as trade secret include client lists, general know-how, and other processes. As can be understood, things that may be protected by trade secret might not be eligible for patent protection. Of note, a downside to trade secret protection is that if the information does not remain as a secret, then the protection is gone.
Patents and trade secrets both offer slightly different protection. In some cases, an idea or recipe is not eligible for patent protection. In other cases, an article of manufacture may be reverse-engineered and for that reason it is not eligible for trade secret protection. Interestingly, if one keeps something as a trade secret and someone else independently invents something covered by the trade secret and then patents it, the original creator is then not able to make, use, sell, or import the invention. This is something to think about if the invention is suitable for patent protection.
If you would like more information about patents or trade secrets or intellectual property in general, i welcome you to join the Pirate Fight Club Facebook group.