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The
Introduction
to Intellectual Property module covers different
types of intellectual property. It will be helpful
for you to review this module to understand what
other options you have besides filing a patent.
In summary, patents protect inventions (as do trade
secrets); copyrights protect written expressions
(such as books), film, music, and art; and trademarks
protect the names of companies and their logos.
For the purpose of protecting an invention, your
choice is probably limited to patent protection
and trade secret protection.
You read about some of the advantages of getting
a patent in the previous section, but in some cases
a trade secret protection may be preferable. For
one thing, a patent has a shorter life than a trade
secret. Patents filed after June 8, 1995 last only
twenty years from the filing date. In contrast,
a trade secret (like the secret recipe of Coca ColaŽ)
can last indefinitely if properly protected.
There are other disadvantages. First, you cannot
enforce your patent rights until your patent "issues."
Sometimes it takes years from the time a patent
is filed to the time it issues (although there are
ways to speed up the process). A trade secret can
be enforced from the moment it is created.
Second, you must make a very detailed disclosure
of your invention in your patent application. After
your patent issues, your disclosure is publicly
available to everyone. Such a disclosure may be
useful to your competition, who may not otherwise
know how to "practice" the invention. With the information
in hand, your competitors may be able to develop
alternative ways to make your invention. In contrast,
a trade secret is just that: secret.
Another disadvantage of patents is their high cost.
In 2003, the average cost of preparing, filing and
maintaining a full patent application was $10,000
to $25,000, not including the cost of filing and
maintaining foreign patents. In contrast, trade
secrets are free.
A patent is sometimes the only way to protect your
invention. In many cases, trade secret protection
is impossible or impractical because the trade secret
can easily be detected due to the nature of the
invention (through reverse engineering for example).
Also, trade secrets rely on employees to keep the
secret. It can be difficult to preserve a trade
secret when employees move freely among competitors
in an industry.
Another advantage of a patent is that you can enforce
your patent against others who have independently
invented the same product as you. In contrast, if
your invention is protected as a trade secret, the
only way to stop someone from making, using, or
selling your trade secret is to prove that the person
stole it from you. If they can prove that they developed
it independently, you cannot stop them.
Yet another advantage is that a patent, once issued,
is presumed to be valid because of the PTO's rigorous
examination of the application. This "presumption
of validity" is usually of great benefit to patent
owners in patent litigation.
You may need assistance to determine whether or
not you should get a patent. If you believe that
your invention is valuable and should be protected,
you are well advised to seek the opinion of an experienced
patent attorney who can help you make the determination.
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