How do I choose whether to patent something or keep it as a trade secret?

Patent Trade Secret Trade Secrets Intellectual Property

How do I choose whether to patent something or keep it as a trade secret?

The answer to this question depends on a host of factors which you should carefully evaluate with an attorney experienced in intellectual property law. It is a VERY important decision, and each matter must be decided separately, in light of your objectives, the nature of the invention, and a realistic appraisal of the marketplace and technology.

Among the questions that you and the attorney would consider are these: What is the commercially valuable life of the information or product? How susceptible is the information or product to “reverse engineering” or independent discovery? Is the information or product sufficiently novel to warrant a patent? Is the information or product proper subject matter for a patent? Can you afford the cost of obtaining a patent? Would you be able to afford the costs of enforcing a patent, if it issues? Will improvements and modifications be patentable?

Sometimes, the answers to these questions may make the decision easy. For instance, patent protection is generally more secure than trade secrets because no matter what anyone subsequently develops, it will not destroy your patent rights. For this reason, a technological breakthrough in a highly competitive area like a new vaccine probably warrants patent protection. One would hate to read about his/her discovery in a trade journal a few months after the discovery. Yet while there may be simple answers, there are certainly no blanket generalizations. Decades ago Coca-Cola decided to keep its soft drink formula a secret and has profited immensely from that decision. If it had patented its formula, the whole world would be making Coca-Cola.

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