Trade Secret vs Patent


Trade Secret vs Patent

If you have a trade secret issue, please contact us.  We handle trade secret litigation and issues related to misappropriation and theft.  A trade secret must be kept secret to be protected.

Trade Secret vs Patent

Trade secret law is often best understood when compared to patent law. While the same information could conceivably be protected as either a patent or a trade secret‚ certain kinds of information will better benefit from trade secret protection. If the information‚ process‚ method‚ formula‚ or technique is easily discoverable‚ visible to the public‚ or could be reverse engineered‚ a patent is likely the best form of protection. If, however‚ the information‚ process‚ or method can be kept secretly within the company and is not obvious to the public or competitors‚ maintaining the information as a trade secret may be more beneficial.

Patent law differs from trade secret law in three major ways: disclosure‚ burden‚ and duration. First‚ to be eligible for a patent‚ inventors must disclose how the invention works to enable other skilled inventors to recreate the invention. This is in contrast to trade secret protection‚ which is lost immediately if it is disclosed.

Second‚ to maintain a trade secret‚ the burden is on the owner to use reasonable efforts to maintain secrecy. While the phrase‚ “trade secret protection” is used in the trade secret context‚ it is important to note that trade secret holders must do most of the protecting themselves. The trade secret holder must‚ in contrast to patents‚ continuously guard its trade secrets from disclosure. If a trade secret is revealed‚ the courts will only offer protection if the trade secret holder can show that improper means were used to acquire the trade secret.

Third‚ the duration of patents and trade secrets differ significantly. While patents last for a fixed term of 20 years‚ trade secret protection can be perpetual. Trade secrets may last for hundreds or years or more. Trade secret protection only terminates when the secret is disclosed.

For more information about trade secrets‚ see the pages below.

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If you have a trade secret issue, please feel free to contact us.

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