Patents grant a limited monopoly for a term of generally 20 years from the filing date, giving the patent holder the right to exclude others from making, using, offering for sale or selling the invention in the United States, or importing the invention into the United States. In exchange for this limited monopoly, the patent applicant must describe the details of the invention in the patent, which becomes a public document. Thus, after the 20 year term expires, the public is free to practice what was formerly protected by the patent without incurring liability for infringing that patent. (Note: it is possible that practicing what the patent describes could still infringe another non-expired patent, so one is not necessarily free from patent infringement by virtue of one patent expiring.) One of the requirements of patentability is that the applicant must disclose the “best mode” known for carrying out the invention. I.e. – she cannot leave the secret sauce out of the patent. Failure to comply with this statutory requirement renders the patent invalid.
Trade secret protection, on the other hand, does not carry a 20 year term, but arguably may continue indefinitely. The key to a trade secret is that, under the Uniform Trade Secrets Act (UTSA) as enacted by most states, the information must be secret and the owner must take reasonable measures to maintain its secrecy. If the trade secret becomes public, generally trade secret protection is lost. One of the more famous trade secret examples is the recipe for Coca-Cola soda. Had the Coca-Cola Company sought patent protection for this formula, it would have been published in the patent and available for the public to make, use and sell 20 years later. Because Coca-Cola has been able to maintain its recipe as a secret for many more than 20 years, trade secret protection has likely been much more valuable than patent protection would have been. However, for inventions in quickly changing technologies, such as computer technologies, protection may not be needed for more than 20 years, as the industry will often no longer be interested in employing the patented technology more than 5 or 10 years. In this sense, patent protection may provide better protection, as if the cat gets out of the bag, the patent still has value.
If you have a patent issue, or wish to register a patent, you may contact one of our patent attorneys for a free evaluation or call 866.936.7447 (International Toll Free).
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