8149 / What are the differences between trade secrets and patents?

The essential advantage of both patents and trade secrets is that they protect the underlying idea.

A trade secret has an advantage over a patent because, so long as secrecy is maintained, the trade secret has an indefinite life (the Coca-Cola formula is more than 100 years old), whereas a patent has a limited life during which the patentable invention is public knowledge, thereby providing potential copiers an opportunity to consider ways to take evasive action to bypass the protection afforded by the patent.

Of course, a major defect of a trade secret is that the protection does not exist if the secret becomes known publicly (through no violation of contractual or fiduciary rights), or if others independently arrive at that information. By contrast, a patent protects the invention even though it necessarily becomes known publicly and even if others independently arrive at that
invention.

A decision will generally be made on a case-by-case basis as to whether a given invention or body of information should be maintained as a trade secret or made the subject of a patent. For example, if secret information is quite valuable but not sufficiently new to be entitled to patent protection, it will be maintained as a trade secret. On the other hand, many inventions, by their very nature, cannot be commercialized in any way without publicly revealing the nature of the invention. In these situations, a patent would provide the only possible means of protection.