Trade Secrets v. Utility Patents


Advantages*

Trade Secret

Utility Patent

Gives competitive advantage

Yes

Yes

Long term protection

As long as secret can be kept

~17 years from patent issue (or 20 years from filing date**)

Relatively low cost to protect

Yes or No--Depends on the number of people who know the secret and how hard it is to protect

Yes or No--

Patent application must be prepared and filed and maintenance fees paid.  Have right to exclusivity but must defend patent rights

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 2015 was 26.6 months

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

Product/process involved can be minimally novel

Yes

No, must meet patent standards

Good for product/process that becomes obsolete fast

Yes

No

Good for product/process that can be reversed engineered easily and legally

No

Yes

Good for product/process that is easily discoverable

No

No, must be non-obvious

Good for an invention that was not patented because lesser or different than patentable matter

Yes

No, must meet patent standards

Good for product/process that is disclosed in literature

Yes, if competitive gain possible

No, not novel

Good for customer information such as customer list

Yes, if information not generally known

No

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

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.

May be sold or licensed

Yes

Yes

Can be legally protected by contract

Yes

No, must be publicly disclosed BUT can be protected by trade secret during patent prosecution until publication

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

Good for inventions

Yes if information not generally known and can be kept secret

Yes if novel, non-obvious and appropriate subject matter

Good for designs

No

Yes

Good for ideas themselves

Yes

No, must be fully defined

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

Good to protect knowledge of person of ordinary skill in the trade

No, ordinary knowledge is not protected

No, must be novel, non-obvious to person of ordinary skill in the art

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.


Good for venture-capital investments


No


Yes, investors may prefer patents in high-technology industries

*Note: These comparisons are generalizations and for illustrative purposes only.


** A patent cannot be enforced before it issues except for some minimal provisional rights after publishing.

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For more information from Not Just Patents, see our other sites:      

Steps to a Patent    How to Patent An Invention

Should I Get A Trademark or Patent?

Trademark e Search    Strong Trademark     Enforcing Trade Names

Common Law Trademarks  Trademark Goodwill   Abandoned Trademarks

Patentability Evaluation

Chart of Patent vs. Trade Secret

Patent or Trademark Assignments

Trademark Disclaimers   Trademark Dilution     TSDR Status Descriptors

Oppose or Cancel? Examples of Disclaimers  Business Name Cease and Desist

Sample Patent, Trademark & Copyright Inventory Forms

Verify a Trademark  Be First To File    How to Trademark Search

Are You a Content Provider-How to Pick an ID  Specimens: webpages

How to Keep A Trade Secret

State & Federal Trade Secret Laws

Using Slogans (Taglines), Model Numbers as Trademarks

Which format? When Should I  Use Standard Characters?

Shop Rights  What is a Small or Micro Entity?

Patent Drawings

Opposition Pleadings    UDRP Elements    

Oppositions-The Underdog    Misc Changes to TTAB Rules 2017

How To Answer A Trademark Cease and Desist Letter

Converting Provisional to Nonprovisional Patent Application (or claiming benefit of)

Trademark Refusals    Does not Function as a Mark Refusals

Insurance Extension

How to Respond to Office Actions

What is a Compact Patent Prosecution?

Acceptable Specimen       Supplemental Register   $224 Statement of Use

How To Show Acquired Distinctiveness Under 2(f)

Patent search-New invention

Patent Search-Non-Obvious

Trademark Attorney for Overcoming Office Actions Functional Trademarks   How to Trademark     

What Does ‘Use in Commerce’ Mean?    

Grounds for Opposition & Cancellation     Cease and Desist Letter

Trademark Incontestability  TTAB Manual (TBMP)

Valid/Invalid Use of Trademarks     Trademark Searching

TTAB/TBMP Discovery Conferences & Stipulations

TBMP 113 Service of TTAB Documents  TBMP 309 Standing

Examples and General Rules for Likelihood of Confusion

USPTO Search Method for Likelihood of Confusion

Examples of Refusals for Likelihood of Confusion   DuPont Factors

What are Dead or Abandoned Trademarks?

 Can I Use An Abandoned Trademark?

Color as Trade Dress  3D Marks as Trade Dress  

Can I Abandon a Trademark During An Opposition?

Differences between TEAS and TEAS plus  

How do I Know If Someone Has Filed for An Extension of Time to Oppose?

Ornamental Refusal  Standard TTAB Protective Order

SCAM Letters Surname Refusal


What Does Published for Opposition Mean?

What to Discuss in the Discovery Conference

Descriptive Trademarks Trademark2e.com  

Likelihood of Confusion 2d

Acquired Distinctiveness  2(f) or 2(f) in part

Merely Descriptive Trademarks  

Merely Descriptive Refusals

ID of Goods and Services see also Headings (list) of International Trademark Classes

Register a Trademark-Step by Step  

Protect Business Goodwill Extension of Time to Oppose

Geographically Descriptive or Deceptive

Change of Address with the TTAB using ESTTA

Likelihood of confusion-Circuit Court tests

Pseudo Marks    How to Reply to Cease and Desist Letter

Not Just Patents Often Represents the Underdog

 Overcome Merely Descriptive Refusal   Overcome Likelihood Confusion

Protecting Trademark Rights (Common Law)

Steps in a Trademark Opposition Process   

Section 2(d) Refusals   FilingforTrademark.com

Zombie Trademark  

What is the Difference between Principal & Supplemental Register?

Typical Brand Name Refusals  What is a Family of Marks? What If Someone Files An Opposition Against My Trademark?

How to Respond Office Actions  

DIY Overcoming Descriptive Refusals

Trademark Steps Trademark Registration Answers TESS  

Trademark Searching Using TESS  Trademark Search Tips

Trademark Clearance Search   DIY Trademark Strategies

Published for Opposition     What is Discoverable in a TTAB Proceeding?

Counterclaims and Affirmative Defenses


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