Should the company reveal
its IP to the world and obtain a patent that will cover its IP for a limited
period? Or should the business keep the IP secret forever and shield it by trade
secret laws? Choosing the best
avenue can pose a dilemma for businesses, which have to decide between patent and
trade secrets as a means of protecting their IP.
This
article explores the benefits of trade secret and patent as
modes of protection and the factors to consider when deciding between
The
main aim of intellectual Property rights laws is to promote new technologies,
artistic expressions, and inventions while advancing economic growth. A patent is an exclusive right granted to
an inventor for a new invention in exchange for disclosing the
information to the public. It can
either be rights to a product or a process that generally provides a new way of
doing something, or offers a new technical solution to a problem. The
protection is for a limited period of 20 years as provided by the Paris
convention and Namibia Industrial Property law. Since, competitors have access to the
products, manufacturing processes, or formula after a patent request is filed,
it promotes healthy innovation competition and would result not only in
economic significance but also results in technological advancements.
The
monopoly for 20 years offers to exclude the others from making, using, selling
the invention without the consent of the patent owners. Any violation of the above would supervene in
infringement of the protected inventions and would result in the costly
litigations that might result in injunctions, royalties, and damages. Hence, firms would always take
necessary legal steps like licensing, assignments before
practicing the protected inventions. These will ensure the protection of the
economic interests and growth of the innovator companies. Also, patent protection enables the
innovator to gain larger market shares and control competition. Furthermore, patenting involves
regulatory processes like filing and registration with stricter norms; they
offer the highest protection to the inventions by stricter enforced under the
law.
On
the other hand, it is always not feasible to protect the company's intellectual
assets through patents alone. Trade Secrets are of great value in these
circumstances and offer to protect confidential information, which is
classified as a secret having high commercial viability. Examples of trade secrets
include secret recipes used in brewing beers, Coca-Cola products, and the well known KFC.
Since
no registration or filing requirements are in place for trade secret
protection, there are high risks associated with trade secrets, particularly
when the secret is disclosed to a third party. Unauthorized copying and
duplicate processes are the major impact factors that would also result in a
severe economic impact on the actual owner of the trade secret. Therefore, a company
has to take greater measures on its own to protect the confidential information
and to maintain the secrecy to the fullest as possible.
Trade
secrets offer a profitable option for protection since it does not have to fulfill
governmental regulations like applications or registrations. Further, they also
offer the companies many advantages like perpetual monopoly until the secret is
revealed to a third party. However, they are considered to be the weakest of
the IPR protections since it may lose its protection when there is a failure in
the face of the company to take reasonable measures to maintain the secrecy.
At
the end of the day, both patent and trade secret protection are viable options
for proprietors who wish to protect commercially valuable information. Before
choosing which means of protection to employ, it is important to weigh the
risks and benefits of each method with due regard to the nature of the
invention or information,
the available resources, the business model, and other surrounding
circumstances. Where the inventor desires complete exclusivity over the
invention for an extended period, protection through trade secrets may be more
attractive. On the other hand, where the inventor requires safety and tangible proprietary
rights, patents are probably more viable.
Onesmus K Joseph - MBA, ACIS, BAP, CFIP, PPL, Cand/MPHIL IP Law
Governance Professional
josephonesmus@yahoo.com
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