There is no blanket answer to the much asked question: Do I seek patent protection for my invention or maintain a trade secret? Every situation will vary depending on what is sought to be protected.

While a trade secret can theoretically last forever, as long as the invention remains a secret, a patent granted in the U.S. provides the patent owner with the right to exclude others from practicing the invention for a definite term. Obtaining a Patent provides a stronger form of protection since, unlike with trade secrets, independent invention by another is no defense to infringement. Once a trade secret is reverse engineered, and it is in fact legal to do so, trade secret protection may be lost because the invention is no longer a secret.

On its face it may seem that patent protection is more ideal however, an inventor may want to take into consideration whether the invention is patent eligible and the costs associated with obtaining and maintaining a patent.

Trade secrets tend to be more cost effective requiring mostly security measures to maintain the secrecy of the invention. Security measures should, at minimum, include non-disclosure agreements and non-compete clauses as well as heavily enforced strategies for handling the transmission of confidential information internally and externally.

The decision to seek patent protection or to maintain a trade secret is a strategic one. A company should consider the big picture when determining which route to take for each invention within their portfolio.