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Trade secret or patent: Which is best to protect your IP?

Such products are far more suitable for patent protection, as long as they are considered new” and inventive by a patent office. Preliminary searches in many patent databases such as Espacenet (a free online database run by the European Patent Office) can reveal what existing technologies are out there. This can help you gain an idea of whether your promising technology is in fact new, and inventive, and if it would be worth pursuing patent protection.

So how can you combine both patents and trade secrets to give you an advantage  

Many companies use patents to protect the public side of their inventions i.e. anything that your competitors could reverse engineer. The trade secrets can then protect some of the fine details that a competitor would find very difficult to find out. 

For example, while a product you develop could be protected by a patent, if you subsequently devised a particularly efficient way of making it, this method of production could be kept a trade secret. 

The balance of how much is kept as a trade secret and how much is subject to patent protection will depend on a company’s particular circumstances. If, for example, a company realises that its competitors are researching in the same area of technology and is likely to file patents, the company will often lean toward patenting rather than relying on trade secrets. Similarly, companies which intend to licence technology often prefer the stronger protection of patents to trade secrets.

That said, by having a combination of patents and trade secrets, it can give you the power to prevent competitors taking your key ideas while the patents are in force, but still allow you to remain ahead when the patents expire.

Trade secrets: Practical tips

If your company wishes to use trade secrets, how can you maximise their protection Here are a few key pointers that can help.

Make sure your trade secret is recognised within your organisation and written down if it is not clear to your employees what technology is commonplace and what is a valuable trade secret you could find it difficult to enforce your rights should the information be leaked.

Mark up key documents  Use the words Confidential Trade Secret on certain documents to avoid any confusion. However do not overuse this phrase as it will be weaken the impact on the most essential documents

Control confidential information within your organisation  Create a clear system detailing who in the organisation is allowed access to certain information and under what circumstances. Restricting computer files to a certain number of employees is also advisable.

Make employees aware of polices and protocols on confidential information  While it may be clear to the scientists working on new technologies that everything is to be kept confidential, this may not be so clearly recognised by the sales team, who are naturally keen to shout about the exciting products and processes you are offering.

Alex Rogers is a partner at Haseltine Lake.

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