If you own a small business here in Houston that is product-based, you more than likely have some intellectual property you want to protect. Perhaps you didn’t even realize that, up to this point, you have relied on trade secret law for protection, but now you wonder whether it would benefit your business to apply for one or more patents.

Making this decision depends on several factors, so you need as much information as possible to give you the confidence that you made the right choice.

The law regarding trade secrets

Up to this point, you have done what you can to maintain the commercial value of your data or invention through the implementation of measures to ensure secrecy, such as confidentiality and non-compete agreements. Now that you are considering whether to continue on this track or apply for patents, you need more information about how the federal Defend Trade Secrets Act provides you enough protection. Let’s look at what the act protects as it relates to trade secrets:

  • Business information
  • Techniques
  • Economical information
  • Processes
  • Scientific information
  • Designs
  • Financial information
  • Prototypes
  • Engineering information
  • Programs
  • Technical information
  • Formulas
  • Program devices
  • Methods
  • Codes
  • Patterns
  • Plans
  • Procedures
  • Compilations

As you can see, the act covers a wide variety of things. It covers them regardless of whether they are intangible or tangible or how you store them. As long as you continue to protect their secrecy, trade secrets receive protection from the act indefinitely. You do not have to reveal any information regarding your protected information or go through a formal registration process.

However, if someone else figures out your processes or information, you could lose your protections. You need to consider whether you want to monetize your information, which may present a challenge for trade secrets since you could lose protection if someone else figures it out. Moreover, you will need to keep on top of your efforts to ensure secrecy.

The law regarding patents

On the other hand, the Leahy-Smith America Invents Act provides protection for articles produced through a composition of matter, a manufacturing process or a machine that meet the following criteria:

  • Particularly and fully described
  • Novelty
  • Usefulness
  • Not easily reproducible

That last requirement requires proof that someone in your field could not easily reproduce your work using public information or existing, published patents. In fact, making your information public during the application process could be the biggest drawback of applying for a patent. However, if you receive a patent, you gain certain legal remedies when someone violates your patent. Another factor to consider is that your patent protections only last 20 years.

Sorting out the pros and cons

This information may only scratch the surface of what you need to know in order to choose between trade secrets and patents. To thoroughly explore your options, you may want to discuss your situation with an intellectual property attorney who can then help you follow through with your choice in the best way possible.