When you think about protecting your idea, it’s likely that patents are the first thing that comes to mind. There is another option, however, which I make sure to explain to my clients: Trade Secrets.
what does trade secret protect?
Trade secret protects essentially any secret that has commercial value. The classic example is a recipe. For example, Coca Cola and KFC both have recipes that are protected under trade secret.
It’s important to note that you must select either patents or trade secrets prior to filing any patent application, because a patent application will be disclosed. If you idea is disclosed then it's no longer secret and trade secret protection cannot no longer applies.
Trade Secret and Code
Trade secret is useful in many areas, but a key area is computer code. Programmers can choose to keep the source code of their programs kept secret, while distributing the object code product. This allows the developer to market a product while keeping the nuts and bolts secret.
Had the developer filed a patent application for their code, the code would go into the public domain 20 years from the date of filing. Given the lifespan of computer programs, 20 years is not a long time. If the developer elects trade secrets instead protection can be perpetual.
how do you maintain secrecy?
Simply put, you maintain secrecy by employing reasonable security measures. Reasonable measures can include keeping the recipe in a safe, or restricting access to code. For example, contractually limiting disclosure of code or implementing strong password requirements and two factor authentication.
Downsides to Trade Secret
Trade secrets do have a major downside: your secret can be reversed engineered, and others are allowed to independently develop the same idea. If you have a patent, then no other party is permitted to make or use the patented invention, which means that reverse engineering and independent development are not permitted.
Trade secrets offer low-cost protection for your ideas; all you have to do is maintain secrecy. Trade secret protection can last forever, so long as the secret remains a secret. If you have any questions about trade secrets or how to protect your idea, you can contact me here.