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Advantages* |
Trade Secret |
Utility Patent |
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Gives competitive advantage |
Yes |
Yes |
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Long term protection |
As long as secret can be kept |
~17 years from patent issue (or 20 years from filing date**) |
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Relatively low cost to protect |
Yes or No- |
Yes or No- Patent application must be prepared and filed and maintenance fees paid. Have right to exclusivity but must defend patent rights |
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Rights can happen fast |
Yes, as soon as information has value and is kept reasonably secret it can be offensively protected |
No, average time for patent application to issue in 2009 was 34.6 months |
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Good for business information such as customer lists and information, names of suppliers, pricing data, formulas or recipes |
Yes, almost every business has these |
No, except for method patents |
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Product/process involved can be minimally novel |
Yes |
No, must meet patent standards |
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Good for product/process that becomes obsolete fast |
Yes |
No |
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Good for product/process that can be reversed engineered easily and legally |
No |
Yes |
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Good for product/process that is easily discoverable |
No |
No, must be non- |
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Good for an invention that was not patented because lesser or different than patentable matter |
Yes |
No, must meet patent standards |
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Good for product/process that is disclosed in literature |
Yes, if competitive gain possible |
No, not novel |
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Good for customer information such as customer list |
Yes, if information not generally known |
No |
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Good for information on costs and pricing, sources of supply, mailing lists, methods of finding new opportunities |
Yes, as long as information is not generally known |
Yes if method of making list is patentable |
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Good for complicated product/process where experience is essential and new technologies are expensive to adopt |
Yes, lack of experience can act as a barrier to learning the secret. New processes can be too expensive for competitors to try to duplicate without certain knowledge of the secret and success. |
No, the patent must be completely disclosed. |
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May be sold or licensed |
Yes |
Yes |
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Can be legally protected by contract |
Yes |
No, must be publicly disclosed BUT can be protected by trade secret during patent prosecution until publication |
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Can protect product/process that fails patenting process |
Yes, if publication has not occurred, applications are kept secret by patent office until publication |
No, the patent must issue for legal protection |
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Good for inventions |
Yes if information not generally known and can be kept secret |
Yes if novel, non- |
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Good for designs |
No |
Yes |
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Good for ideas themselves |
Yes |
No, must be fully defined |
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Protects improvements on a product/process |
Yes, may be used to protect newly discovered ‘best modes’ ( or ‘worst modes’) of patented processes if they are not easily discoverable |
Only if new patent application is filed |
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Good to protect knowledge of person of ordinary skill in the trade |
No, ordinary knowledge is not protected |
No, must be novel, non- |
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Good for protecting product/process that multiple people have discovered |
Yes, uniqueness is not necessary but cannot be widely known. But cannot prevent someone else from using the product/process if obtained in legal manner such as independent discovery. |
Yes, if you are the first. No, if you are second or later unless have additional matter to make patentable over the first. |
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Good for venture- |
No |
Yes, investors may prefer patents in high- |
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*Note: These comparisons are generalizations and for illustrative purposes only. |
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** A patent cannot be enforced before it issues except for some minimal provisional rights after publishing. |
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