Keeping It a Secret Versus Patenting It

When its principles are judiciously applied, the patent system serves a rather momentous purpose: to encourage the development of technology and thereby to make our lives better. The usual twenty years of protection afforded to new designs provides inventors and would-be inventors with a reasonable means to benefit from the time and energy they invested. For some of the most assiduous entrepreneurs, the lead-up to a patent is characterised by years of iterative failure and self-sacrifice. Without a light at the end of the tunnel, many more wouldn’t get on the train.

What to leave out

We discussed what qualifies for a patent here, and because patent applications are published, applicants should therefore be careful to omit sensitive business methods or components, where possible, that would otherwise be released into the public realm. High-profile industrialist Elon Musk refuses to patent most SpaceX rocket technologies because it would serve as a virtual how-to to foreign agencies. From a global perspective, the patent system is far from airtight.

Keeping it a secret?

Should you feel that the plans for your world-beating unicycle road marking machine would maintain their value for more than two decades, it may make more sense to simply keep the designs under wraps. Sure, the protection afforded by a patent is stronger, but the patent details are also public, and you lose exclusivity when the patent expires. As the Harvard Business Review reminds us, however, there is a trade-off: ‘it is perfectly legal to reverse engineer and copy a trade secret. A patent lasts only 20 years, but during that period, the protection is far stronger …’.

The Economist warns that even carefully guarded secrets are susceptible. As one salient example, cadres of Chinese hackers are engaged expressly to uncover foreign trade secrets, and the grand majority of businesses have no idea their information has been compromised. (The Chinese authorities emphatically deny any involvement.)

What they don’t want you to know

Sometimes going the trade secret route is more about consumer management. Take Twinkies, for example. That the recipe for these sponge-like stalwarts of the confectionary world is protected not by a patent but rather by corporate secrecy may have more than a little to do with what they don’t want you to know. Having once touted the health benefits of egg protein in Twinkies, by keeping the recipe secret the manufacturer was not obligated to reveal that each cake has only about 1/500th of an egg in it.

It’s important not to tell anyone

Oxford University Innovation, the home of the university’s patent attorneys, advises its students that ‘no information on an invention should be made available to the public, in any way, anywhere in the world, prior to a patent application being filed.’ Falling afoul of this advice seriously risks a rejection of the application. Fruitful discussions around your invention’s development with carefully selected parties will necessarily be preceded by a properly drafted non-disclosure agreement, though conversations with a patent attorney are protected by legal privilege. We strongly urge our readers to seek the guidance of just such a practitioner.

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