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Patent protection vs. trade secrets: a brief look at some relevant considerations, P.2

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.

Last time, we mentioned that it is not always possible or desirable to obtain patent protection for valuable business information and that trade secret protection can provide a viable and even preferable alternative to patent protection in some cases. We'd like to pick back up on that thought in this post.  

One of the advantages of trade secret protection is that it has a broader application than patent protection, since there are stricter requirements that must be met in order to obtain patent protection. The information must, for example, be useful, novel, and non-obvious, according to technical definitions. In cases where confidential business information does not meet the criteria for patent protection, trade secret protection is an important way to keep the information from competitors and to hold those who misappropriate the information liable. 

Even when patent protection is available for valuable business information, though, trade secret protection can be a preferable alternative. For one thing, there is usually greater simplicity in trade secret protection since it does not involve any costs beyond keeping the information confidential, and there are no formalities associated with creating a trade secret. With patent protection, though, there are required government filings and ongoing costs.

Another advantage of trade secret protection is that it can begin sooner than patent protection and it continues indefinitely, whereas patent protection takes time to obtain and eventually expires. Creation of a trade secret only requires reasonable efforts to maintain secrecy of the information, and there is no expiration on trade secrets.

Trade secret protection does involve some limitations, and businesses will sometimes begin with trade secret protection and later on patent aspects of the information for which they want additional protection. That having been said, trade secret protection can also be incredibly useful when done correctly and as part of an overall plan to protect valuable business information.

Any business can benefit from working with experienced legal counsel in identifying and protecting trade secrets, and it should always seek out experienced representation to enforce trade secrets in court. 

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