Trade Secrets and Patents and bears, oh my!
Trade Secrets are things that have commercial value (Trade) and are kept secret (Secret). Patents are often thought of as "how you protect your extra special super-duper secret way of doing something." But that's not at all true. The patent process involves publishing your extra special super-duper secret way of doing something. So now it's not a secret, is it? No, it's not. You trade (excuse the pun) trade secret protection for patent protection. Sometimes one is better, sometimes the other is.
But here's the problem that the plaintiff faced in a recent case. Patent applications are not published at first. So you can have something in the patent process, but still maintain that it's a trade secret. But after 18 months, patent applications have to be published. When this happens, you've lost your trade secret protection and you don't have patent protection. That's where the bears come in. Resourceful businesses and scientists comb through published patent applications, like bears wading into a river full of salmon. These applications often (not always) contain implementations (secrets) that are there for the taking.
The initial decision as to whether to patent something is not always an easy one. The patent process is expensive and can actually slow down development. And certain actions taken prior to filing for a patent can ruin your chances of getting the patent issued. So give some thought to how you want to protect this super-duper secret way of doing something as soon as you think it up. If you want help deciding how to protect it, contact me at nina@buslaw.com
