Patents vs Trade Secrets vs Publication

In increasingly competitive markets, many organizations are concerned that they obtain sound protection for their intellectual property. In the computer graphics field, the motivation is more often defensive rather than for royalties. Businesses want assurance that they can market the product they have designed with minimal danger of intellectual property challenges.

When a company invests heavily in new technology, they have two principal means of preserving their investment. One way is to keep inventions as trade secrets. The other is to seek patent protection. A third alternative is not to seek proprietary protection at all, but to publish the invention so that no one can get a patent on it.

The advantage of keeping an invention as a trade secret is that the only costs are in guarding the secret. The trade secret, if it is kept a secret, lasts until someone else invents the same thing and either patents or publishes it. That may be a long time or a short time, depending upon the pace of technology in the subject area. When someone else gets a patent or publication, the original inventor who kept the invention as a trade secret does not have the option of contesting the patent or filing for a new one. If the new inventor just publishes the invention, then at least the original inventor (and everyone else in the industry) may use the technology thus placed in the public domain. However, if the new inventor patents the technology, then the original inventor and everyone else must obtain a license from the new inventor. This is true even if the original inventor can prove he or she invented it first and kept it as a trade secret.

But shouldn't the patent go to the original inventor? No, at least not the way the law is written. The patent goes to the earliest inventor who continues to develop the invention and proceeds without delay to file a patent application. The logic, from the viewpoint of the patent system, is that the public benefits from having inventions disclosed. In return for disclosing the invention, the inventor gets a government-guaranteed monopoly for a fixed period of time, up to seventeen years. Were the patent system to provide a monopoly for all the time the invention could be kept a trade secret plus the patent time, it would discourage inventions from being disclosed, contrary to the whole purpose of the system.

Does this mean that if someone independently re-invents the formula for Coca-ColaĻ, which has been kept a trade secret for so many decades, they could get a patent on it? Yes, they could. With modern technology, perhaps coming up with something that tastes just like Coke is not a big problem. Matching Coke's advertising budget, on the other hand, is a BIG problem.

So is there any alternative to obtaining a patent that will guarantee that you will always be able to do what you have been doing in your product? There is only one, and that is to publish the technology and put it in the public domain for everyone. That should provoke some head scratching in weighing the value of proprietary technology versus the potential embarrassment of having someone else patent what you are doing. The "crown jewels" of your technology will very likely deserve patent protection, whereas some of the "neat tricks" might just as well be gifts to humanity. Publication may at least help make your organization famous.

Incidentally, publication in any language, anywhere in the world, counts. So maybe you might think about settling for fame throughout Nepal for starters? Actually, if you are looking for a good place to publish that is legitimate but convenient, a U.S. Patent is a good place. Any invention disclosed, but not claimed, in a U.S. Patent is considered published. Thus, if you have something that is not quite worth the investment of a patent in its own right, but it logically relates to another invention which you are filing, then this may be a good way to get it on the record.