Keep it a Secret or Get a Patent?

     There are four different types of intellectual property (IP): patents, trademarks, copyrights, and trade secrets.  There is often overlap between the different varieties of IP.  A trademark may also be copyrighted and the subject matter of a patent may also be trademarked or even copyrighted.  However, there is no overlap between patents and trade secrets.  These two protections are mutually exclusive.

     In exchange for obtaining the rights granted by patents, inventors agree to fully disclose their inventions to the public.  And because a trade secret is, by definition, something that remains secret, it is impossible to both make the disclosure required to obtain a patent and simultaneously maintain a trade secret.  Therefore, inventors are sometimes left with the difficult decision of whether to seek patent protection or maintain trade secret status.  There may be no clear answer as to what type of protection is best, but some things to consider are the duration of the desired protection and the likelihood of reverse engineering.

     A patent is good for only a set term.  However, a trade secret can last forever.  If your intellectual property may provide value 20, 30, or even 50 years down the road, trade secret protection may be a good idea.  However, if your idea is likely to be reverse engineered or independently invented by another, a patent may provide more valuable protection.

Kelly G. Swartz is a registered patent attorney in Melbourne, FL.  She focuses her practice on intellectual property law including patents, trademarks, copyrights, and trade secrets.