Patent And Trade Secret in Intellectual Property Rights
Keywords: Patent and Trade Secret, Intellectual Property Right, innovation
WRITTEN BY: SONALI SINGH
Patent and Trade Secret are two types of intellectual property rights that are distinct from one another. These intellectual property rights (IPRs) assist you in protecting and monopolising your innovations and discoveries.
Patents and Trade Secrets differ in the type of intellectual property protection they provide. While patents give you exclusive rights to establish a monopoly and commercial rewards from your invention. Trade secrets are formulas, procedures, and business information features that have commercial value because they are kept secret. Businesses that flourish are frequently ones that provide their clients with something special. Customers are attracted to originality and exclusivity, which leads them to prefer one brand over another. The separation of the cell phone consumer market – where one set likes Apple’s iOS system. While the rest prefer Android – this is a typical illustration of brand loyalty.
Even though there are thousands of comparable products on the market. The customers are drawn to products and services that may provide them with a significant return on their investment. Though brand loyalty and exclusivity may appear to be commonplace. Building a client base takes years of hard work and research, which begins with techniques such as patent filing and trade secret protection. So, what exactly are these two types of business practises? The distinctions between patents and trade secrets are compared in this article.
Patent vs Trade Secret: Understanding the Meanings and Definitions
While trade secrets are actively protected, patents must be filed.
What is a Patent?
When you invent something new, unique, and previously unknown, you can file for a patent. As an inventor, you can obtain a monopoly on your innovation by filing for a patent. This legal document acknowledges your invention and grants you some exclusive rights to it. You are free to profit from your concept however you see fit. One could, for example, start a business with the invention. You might potentially enter licencing deals with several different businesses and charge a high licencing fee. Patenting your concept also provides you with the legal protection you need to prevent others from duplicating or replicating it without your consent.
Patents can be filed in India for both tangible and intangible inventions involving research and technology. The patent could be for a completely new invention or an improvement on one that already exists (such as a desktop to a laptop). Patents can be filed in a variety of ways, including design, utility, and plant patents.
What is a Trade Secret?
Trade secrets, like patents, are considered intellectual property and are under the IPR legislation. This type of intellectual property consists mostly of several methods, equations, procedures, instruments, patterns, designs, or information compilations with intrinsic economic worth. The features that make an invention valuable and provide it economic value are known as trade secrets. They are rigorously secured and protected as a practice and are not widely known. A trade secret is classified as such because its owners take the appropriate precautions to keep it hidden.
Trade secrets, which are sometimes known as confidential agreements, differ by jurisdiction and the sort of information secured, which are protected. The secret is also provided to a small group of insiders who are all legally obligated not to reveal it. The Coca-Cola formula is perhaps the most sought and frequently referenced example of a trade secret. Tourists in Atlanta, Georgia, can take a tour of the Coca-Cola Company, which includes a visit to the vault where the beverage’s recipe is kept safe. Another closely guarded trade secret is Google’s powerful search algorithm.
The Differences Between Patents and Trade Secrets
The distinctions between trade secrets and patents are divided into six categories. They are as follows:
1. Confidential Vs. Publicly Published Information
The most obvious distinction between patents and trade secrets is that the former is usually made public. A trade secret is normally kept confidential, as the term secret implies. Only a few people within the company are aware of this secret, and they are obligated to keep it discreet under a legal contract worth millions of dollars.
2. New Vs. Useful Protection
A patent is intended to protect unique and valuable ideas that have a broad impact on humanity. Such as anything that simplifies a previously difficult work. The trade secret, on the other hand, aids in the protection of knowledge that is judged valuable and should be kept hidden for the inventor to profit solely from their innovation.
3. Exclusion of Rights Vs. Misappropriation
Another distinction between trade secrets and patents is the ownership of the invention’s rights. As a patent holder, you have the right to prevent others from utilising your innovation or profiting financially from it, including replicating, reproducing, or stealing it. Legal action might be taken to put an end to any illegal practices. Inventors can prevent their idea from being misappropriated by using trade secrets. Which normally involve complicated thinking and are typically guarded.
4. Formal Application Vs. Personal Security
A formal patent application is essential for people who want to patent their innovation. The time it takes to file a patent and then have it granted might range from two to three years. Before issuing the patent, the patent office evaluates your application and cross-references other inventions that may be comparable to yours. There is no need to apply it in the case of trade secrets. You are solely responsible for safeguarding your trade secret. Furthermore, if your trade secret is exposed publicly, there is only so much you can do to safeguard.
5. The Patents’ and Trade Secrets’ Validity
A patent is normally valid or protected for up to 20 years after it is granted. Inventors have the option of renewing their patent when it expires. There is no definite validity in the case of trade secrets. A trade secret can be protected indefinitely.
6. Patent and Trade-Secrets-Related Expenses
As previously said, inventors must follow the proper patent filing procedure, which can take years. Inventors may also be required to pay a variety of costs, which might total several lakhs, depending on the sort of patent they are applying for. Additionally, because a patent is intrinsically territorial (limited to the area in which it is filed), inventors can file for international patents for the specific country in which they want to market their products. This could result in additional costs. A trade secret, on the other hand, does not come at a hefty price. Only the costs related to internal procedures must be paid.
What should you do if your idea isn’t patentable?
There are times when you decide to seek a patent for your idea and the Patent Office in India informs you that your invention is not patentable. In this instance, you can still protect your innovation by filing a claim to have it registered as a trade secret. If the invention provides you with a competitive advantage or a competitive advantage over your competitors, it may be legally protected as a trade secret because your competitors do not know that information.
The parameters to examine when filing for an IPR are Patent vs. Trade Secret
Let’s look at what you should consider if you’re considering whether to file for a patent or keep your innovation a trade secret. Now that we’ve explored the differences between patents and trade secrets.
1. Determine whether or not the invention is patentable.
You must first determine whether the invention is patentable before filing. If it isn’t, it is best to focus your efforts on obtaining trade secret protection than pursuing patentability. If your invention does not qualify as a trade secret, you may have little alternative but to invest the money and file for a patent to monopolize it.
2. Patent and Trade Secret enforcement factors
If you choose to enforce a patent, you must show that another company is copying or recreating your idea, when you file a patent infringement lawsuit. However, establishing infringement can be difficult due to reasons such as the competition’s technology or the protections they have received. Enforcing a patent can be particularly difficult when it is stolen abroad, by foreign individuals or companies in nations where your patent is not enforced, as is frequently the case. The same can be said regarding trade secret protection. Similar to patent enforcement, actions concerning the enforcement of trade secrets in a foreign country are generally susceptible to several obstacles. It is, however, considerably simpler.
3. The distinction between Patents and Trade Secrets in terms of disclosure criterion
The concept of trade secrets, as well as the laws that protect them, is usually non-disclosure of commercially valuable knowledge. For example, two companies may decide to keep their patentable discoveries as trade secrets to prevent knowledge from reaching their competitors. Patent disclosures, on the other hand, are published in patent publications, which your competitors can also read. Your competitors may be able to gain valuable strategic insights into what your organisation is doing. And what course of action you are doing as a result of the material that has been made public. This competitive intelligence may cause your financial competitors, particularly those with sufficient resources to achieve a competitive advantage. To build a competitive intelligence strategy comparable to yours.
4. Differences in cost between Trade Secrets and Patents
You must decide whether to file for a patent and invest the money required or to register a trade secret, which is a less expensive choice. The decision you make should be based on the value you believe your idea has. It is self-evident that obtaining a patent requires far more time and money than developing a trade secret. When deciding whether to file for a patent or a trade secret, the elements listed above are some of the most important factors to consider.
In India, the debate is between patents and trade secrets.
While there are regulations in place to protect patents, there is no legislation in place to protect trade secrets in India. Trade secrets are usually preserved based on equity considerations as well as a common-law case for breach of confidence. A trade secret owner can request an injunction if someone violates a private agreement. They can also go to court to get the confidential, proprietary information back to them. As well as litigate for any losses incurred as a result of the trade secrets being revealed. By preserving a restriction clause in agreements, Indian law bans anyone from releasing any information disclosed in confidence.
CONCLUSION
Finally, the only two types of intellectual property rights designed to safeguard inventions are patents and trade secrets. As an investor, you have the option of either patenting or filing your idea as a trade secret. However, both processes, as described above, frequently entail some considerations. One must evaluate the differences between trade secrets and patents before determining whether to file for a patent or a trade secret. You should consider your options and choose the best course of action.
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