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Patent protection vs. trade secrets: a brief look at some relevant considerations, P.1

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

In our previous post, we briefly discussed some of the differences between utility and design patents. As we noted, patent protection isn’t necessarily limited to a single type of patent; in some cases, it may be desirable to obtain both a utility and a design patent on an invention.

This is often what happens in the world of mobile device design, where patent disputes are very common. One of the companies at the center of many of these disputes is Apple. In recent years, Apple has been involved in patent disputes with a number of other manufacturers, including Nokia, Motorola, and Samsung. 

When a party believes its patent has been infringed, it is sometimes possible to resolve the matter outside court; in some cases it isn’t, at least initially. One of the common ways patent disputes are resolved is to enter into license agreements. This is how Apple and Nokia recently ended long-standing patent dispute involving mobile device software, display, user interface, video coding and other matters.

One important issue for businesses in competitive industries to consider is the value they will place on patent protection relative to trade secret protection. Though the two are not exclusive, it isn’t always desirable to seek both types of protection. When it is a matter of pursuing one or the other, certain considerations come into play. For one thing, patent protection may not be available for a business’ intellectual property, and it will only be possible to pursue trade secret protection. In other cases, patent protection may be available for an invention, but a business may decide that trade secret protection is sufficient, and even has certain advantages.   

Next time, we’ll say a bit more about some of the considerations that would go into deciding between trade secret and patent protection, and how an experienced attorney can help in these matters.

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