Patents vs Trade Secrets | What is a trade secret?

patent protection for idea

Any practise that is not known outside of the organisation and is confidential information just like the Intellectual property rights is known as Trade secret. It can be valuable for the company’s growth. The owner attempts to keep it a secret which is not known to the public. A Company needs to ensure that the confidential information and processes are protected to get economic advantage from their competitors as well.

Example of a Trade Secret:
  1. Coca-Cola’s secret recipe or formula is a great example of trade secret. The recipe has never been revealed since it hasn’t been patented. This is a type of ‘process’ trade secret.

If the process used to manufacture a product can be discovered simply by looking at the product‚ the process will not qualify for trade secret protection as it is easily ascertainable. In that case‚ the inventor would be advised to seek patent protection.

What is considered a trade secret?

Anything that offers an advantage to a business and provides value to customers over their competitors is considered a trade secret. Method, recipe, pattern, design etc. are different forms of Trade secret. A company needs to get their employees to sign non-compete or non-disclosure agreements (NDA) to protect to protect its trade secret. Financial, Business, Scientific, etc. are the forms and types of trade secrets defined by the federal law. If the secret is independently discovered, released, or becomes general knowledge and the holder fails to safeguard it, the secret gets removed.

Following are the key takeaways and common characteristics of a Trade secret:
  • They are not public information.
  • The confidentiality provides an economic benefit to their holder over its competitors.
  • May differ across jurisdictions but have three common traits: not being public, offering some economic benefit, and being actively protected.
  • Their secrecy is actively protected.
  • Since the information is a secret, it must be commercially valuable as well.

Trade secret is different from patent protection because patents require invention features to be disclosed publicly. Intellectual property rights do not only apply to physical property. They also extend to trademarks, patents, copyrights, industrial designs, domain names and related intellectual property. Stealing or discovering a trade secret that infringes on another party’s copyright or patent can constitute a violation of the intellectual property rights of that party. Therefore, if you discover any type of trade secret theft or infringement of any type of intellectual property rights, you should report the activity to your intellectual property attorney. An intellectual property attorney will have the ability to determine in your favor whether there has been any type of fraud or whether there was any type of mistake made in the execution of the fraudulent scheme.

Our team of advanced patent attorneys assists clients with patent searches, drafting patent applications, and patent (intellectual property) agreements, including licensing and non-disclosure agreements.

Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.

Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).

Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.

Working closely with patent attorneys along with international law firms with significant experience with lawyers in Asia Pacific providing services to clients in US and Europe. Flagship services include international patent and trademark filingspatent services in India and global patent consulting services.

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