As an organization founder, one of the most crucial decisions one makes is how to safeguard their unique ideas and intellectual property. There are several alternatives to consider, but two of the most important for fledgling businesses are patents and trade secrets. While each can give legal protection, they have quite different criteria and restrictions. Choosing the correct intellectual property approach early on is critical to increasing the value of work and reducing the danger of rivals duplicating the inventions.

This article will look mainly at the difference between trade secrets and patents to assist startup entrepreneurs to decide which method is better. 

Understanding the advantages and disadvantages of each will allow one to choose the IP protection solution that is most suited to the specific scenario and stage of business growth. 

Let’s look at the differences between patents vs trade secrets to help making an informed decision about how to strategically protect a company’s competitive advantage.

What is A Patent?

A patent is an intellectual property protection that the government grants to an inventor or assignee for a specified duration of 20 years. Patents grant the owner the right to prevent others from economically utilizing the protected innovation without permission in exchange for publicly disclosing its contents.

To be patentable, an invention must be innovative, non-obvious, and industrially beneficial. The term “novel” refers to an innovation that was previously unknown to others in the area. The term “non-obvious” means that it is difficult to render from the existing knowledge and technology. Useful means having a distinct, substantial, and credible usefulness.

To obtain a patent, an application must be filed with the patent office, which is then examined. If qualified, the patent is awarded and published, giving the owner exclusionary rights throughout the jurisdiction during the invention’s 20-year duration. These rights enable the patentee to prohibit others from manufacturing, using, selling, proposing to sell, or importing the protected product or procedure.

Patents are an effective intellectual property instrument for inventors and businesses seeking to protect economically valuable inventions, recover R&D expenses, and gain a competitive advantage over rivals. However, the patenting procedure necessitates disclosure of invention details, which become public information after the application for a patent is published.

What is A Trade Secret?

A trade secret is confidential business knowledge that gives a competitive advantage since others in the same industry know nothing about it. Unlike patents, trade secrets do not need public disclosure and can be kept secret forever as long as adequate precautions are taken to protect the knowledge.

Trade secrets include client lists, manufacturing techniques, sales strategies, recipes, computer programs, and chemical formulations. To qualify as a trade secret, the knowledge must not be publicly known or easily ascertainable, offer economic value by not being known by rivals, and be subject to reasonable safeguards to protect its secrecy, such as confidentiality agreements.

Trade secret law is based on common law principles rather than statutory intellectual property laws such as patents. It allows for civil lawsuits if a trade secret is taken through unlawful means such as theft, bribery, or violation of contract. However, trade secret protection does not prevent others from independently developing the same information or reverse engineering publicly available items.

Patent VS Trade Secret: A Comparative Study

Maintaining trade secrets is often less expensive for businesses than patent protection since there are no examination or renewal fees. Trade secrets can also provide long-term protection if kept secret. However, trade secret theft is more difficult to identify and establish in court than patent violation. The extent of rights is also more limited than in an exclusionary patent.

When it comes to protecting intellectual property, the difference between patents and trade secrets is significant. Let’s take a look at some of their key differences:

1. Purpose of Intent:

Patents protect innovation and beneficial ideas, but trade secrets protect any valuable confidential knowledge that gives a company an advantage over competitors.

2. Application:

Patents offer the patentee the legal right to prevent others from creating, using, selling, or importing the patented innovation. In return for this exclusionary power, the patent application and documents make all details about the patented invention public.

Trade secrets, on the other hand, guard against the theft or unlawful disclosure of sensitive knowledge rather than preventing others from generating the same information independently.

3. Duration of Filing and Validity:

A patent application entails formally filing documentation with the patent offices and going through an examination procedure that normally takes about 2-3 years. A patent, once issued, is valid for 20 years.

Trade secrets do not require a formal application procedure or review period; protection is unlimited as long as reasonable efforts are taken to maintain the knowledge confidential. However, there is a possibility that a rival will produce or lawfully get the same trade secret knowledge through reverse engineering or independent discovery.

4. Level of Transparency:

Patents make protected inventions available to the public, while trade secrets stay totally confidential. Once a patent is awarded, all information of the innovation is disclosed in patent filings for any interested party to read and learn from.

Trade secrets, on the other hand, must be closely guarded by security measures and non-disclosure agreements with personnel in order to keep their protected status.

5. Cost of the IP Protection:

Costs fluctuate greatly between the two types of intellectual properties. Patent applications and prosecution may cost thousands of dollars in legal expenses, depending on the nation or countries seeking protection for.

Trade secrets may not require any application fees or formal filings, but enterprises do incur expenditures for establishing security processes and contracts to ensure the secrecy of protected information.

In essence, patents give a powerful exclusive right but need a lengthy public disclosure process, while trade secrets provide indefinite protection if confidentiality is maintained, but do not prevent independent creation of the same knowledge by others.

Trade secrets are frequently a more cost-effective alternative for early-stage firms. This is because they avoid the need to publicize proprietary ideas before they are ready. Patents may be advantageous for inventions that are easily reverse engineered.

Patent-Trade Secret Intersection: Strategically Safeguarding Ideas

In India, patent and trade secret law serves two unique societal functions. The Patents Act encourages innovation and information exchange by providing patent holders exclusive rights. On the other hand, trade secret law, as established by common law, protects sensitive corporate information and encourages confidentiality.

Trade secret jurisprudence in India has evolved more slowly than the codified patent system. However, in today’s quickly changing commercial climate, both types of intellectual property have enormous value for businesses.

This raises the dilemma of whether an inventor should choose between patent protection and keeping an idea a trade secret. The Supreme Court of India thoroughly investigated this subject. It examined three types of topic matter that an inventor may consider:

  • A trade secret thought to be patentable subject matter.
  • A trade secret that does not fulfill patentability criterion
  • A trade secret with dubious patentability.

For the second group, the Court determined that there is no contradiction between trade secret legislation and the Patents Act since patent protection would never apply. For the third category of unclear patentability, the Court determined that trade secret legislation serves an essential social function without discouraging patent filings.

Finally, for the first category of seemingly patentable subject matter, the Court determined that trade secret protection creates no realistic risk of inhibiting patent applications. This is because trade secrets and patent rights may coexist. This gives innovators the freedom to choose the optimal strategy for their situation.

Overall, Indian law recognizes that both patents and trade secrets can play important roles in invention. This gives inventors and businesses valuable alternatives to explore depending on their own intellectual property.

Criteria for Choosing Between Patents VS Trade Secrets.

When deciding how to protect IP, businesses must evaluate many factors to determine whether to choose patents or trade secrets. Among the key considerations are:

Is the knowledge patentable because it meets the requirements of originality, non-obviousness, and usefulness? If not patentable, trade secrets may be the sole alternative.

1. Term of Protection – Patents are valid for 20 years from the date of filing. On the other hand, trade secrets might theoretically endure indefinitely if kept secret. This makes trade secrets more suited to securing continued improvements.

2. Enforcement – Patents involve proving infringement in court, which may be difficult and costly. Whereas trade secret theft is based on circumstantial evidence. Enforcing multinational patents is likewise quite difficult.

3. Injunctions – After 2006, injunctions for patent infringement became discretionary, reducing deterrence. Trade secret injunctions confront similar international restrictions.

4. Disclosure – Patents divulge information when granted, giving rivals with insights. Trade secrets mitigate this disclosure risk at the expense of continuous confidentiality obligations.

5. Costs – Procuring patents is often far more expensive than establishing trade secret processes such as NDAs (non disclosure agreements) and security measures.

Weighing these essential variables, may assist businesses in determining the best type of IP protection for any particular situation. Patents and trade secrets both play crucial roles in different situations.

IP Protection Put to the Test: Evaluating Patents vs. Trade Secrets Through a Case Study

Life Spine, a medical device business, has launched a lawsuit against competitor Aegis Spine over their ProLift System, an inflatable spinal implant. The two businesses had signed a distribution deal under which Aegis will sell the ProLift to hospitals on Life Spine’s behalf. As part of this, Aegis agreed to protect Life Spine’s sensitive knowledge and desist from reverse engineering the ProLift.

However, Aegis shared information about the ProLift with its parent firm in an effort to assist in the development of a competitive device. The parent business later released a competing spinal implant. When Life Spine learned about this, they sued Aegis for breach of contract and trade secret theft.

Aegis argued that the protection of trade secrets no longer applied because they had already exposed specific dimensions of the ProLift implant through patents, marketing, and sales. The district court imposed a preliminary injunction against Aegis for advertising the competitive product.

Aegis challenged the order, saying that a corporation cannot maintain trade secrets for a publicly revealed product. However, the Seventh Circuit confirmed the trial court’s decision. It found that limited disclosure through patents and sales did not result in the loss of all trade secrets. The exact knowledge Life Spine sought to safeguard as a trade secret was only available to Aegis through confidentiality agreements. As a result, Life Spine’s trade secrets about the ProLift remained legally secure.


While both patents and trade secrets give legal protection for IP, the appropriate strategy will vary depending on the circumstances. A patent may be more appropriate for preventing others from creating, using, or selling an innovative, non-obvious, and beneficial innovation. Keeping an idea as a trade secret through secrecy may be preferable when public disclosure could harm commercialization efforts.

To identify the best IP approach, consider issues such as patentability requirements, term lengths, enforcement problems, disclosure risks, and expenses. Patents and trade secrets are both vital in invention, and combining the two can sometimes provide the best protection. Businesses that understand the benefits and limits of each technique may proactively protect their competitive advantages and ideas. The decision needs understanding, but when done correctly, it may provide a significant advantage in an increasingly knowledge-based global economy.

Dipanjana Chakraborty

Patent Attorney

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