8
This means that when the patent application is published,
details of the invention are available for all to see, and once
the patent has expired (or if a patent is never granted for
any reason) anyone is free to exploit the technology for their
own benefit. The requirement to place detailed technical
information into the public domain in this way will be
problematic for those whose innovations will have a lifespan
longer than the 20 year term of a patent.
Obtaining granted patents can be a costly and slow process.
The time between filing a patent application and grant of
a patent can be several years, and the cost of obtaining
patents in all key territories can run to tens of thousands
of pounds over that timeframe. Once a patent has been
granted, further fees must be paid to keep it in force for
its full term. For critical innovations like a new blockbluster
drug that will be in use for generations, the cost of patent
protection will be dwarfed by revenues over the lifetime of
the product, but for less important developments, or those
with a more limited lifespan, such as mobile apps, those
costs might be more difficult to justify.
So patent protection isn’t appropriate in all circumstances,
but what’s the alternative?
One option is to use trade secrets to protect your
innovations. A trade secret can be defined as information
that is not generally known to the public, that provides some
economic benefit, and for which reasonable efforts have
been made to maintain secrecy.
Importantly, a trade secret is not a registered right. Instead,
trade secrets must be carefully managed in-house, to ensure
that they remain secret. Once a trade secret becomes public
it loses all value.
Trade secrets are therefore appropriate for innovations that
have long-term value and can be kept secret, both in terms
of preventing public disclosure by their owners and in terms
of being difficult to derive or reverse engineer from any
product that may be made available to the public. Chemical
formulations, recipes and production processes that provide
economic benefits are particularly suitable candidates.
The key benefit of trade secrets is that there is no limit
to their term, provided that they remain secret. Indeed,
perhaps the best-known example of a trade secret, the
recipe for Coca-Cola, has been successfully kept secret for
decades.
Additionally, there are no filing or registration costs
associated with trade secrets, so once an organisation has
put in place the necessary processes and infrastructure for
managing its trade secrets, the ongoing cost is negligible
compared to the cost of developing and maintaining a
patent portfolio.
However, trade secrets are not without their own risks. As
noted above, once a trade secret becomes public it loses
all of its value, so it is crucial to put in place systems to
protect trade secrets within your business. This will involve
a disciplined approach to defining and documenting what
the business regards as its trade secrets and restricting
that information only to those within the business with a
...Patent, publish or trade secret
IP review
autumn
2016
