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The Intellectual Property StrategistFeaturesIntellectual PropertyPatent Licensing and TransactionsTrade Secrets

Choosing Between Trade Secret and Patent Protection: A Primer for Businesses

By Darren M. Franklin
May 01, 2022

When an employee conceives of a new innovation, a business is often confronted with a difficult decision — whether to apply for patent protection on the innovation or whether to keep the innovation confidential as a company trade secret. There are many considerations that a business must take into account stemming from different characteristics of trade secrets and patents.

Overview of Patents and Trade Secrets

A patent is a right to exclude others from making, using, offering for sale, selling or importing a patented invention. It is generally enforceable up to 20 years after the patent application filing date. Filing for patent protection entails a significant quid pro quo — in exchange for exclusivity over the term of the patent, the patent applicant must make a disclosure of the invention sufficient for a person reading the patent to make and use the invention. Once the 20 years are up, the invention is then dedicated to the public and may be used by anyone.

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