The Intersection of Patents and Trade Secrets

by Michael R. McGurk and Jia W. Lu –

An old retort in politics is “You’re either a Democrat or a Republican!” Likewise, the counterpart retort in Intellectual Property for companies back in the day was “You’re either a patent company or a trade secret company!” Patents and trade secrets are the only two forms of intellectual property that protect information—patents protect patentable (innovation) information, while trade secrets can protect patentable information and any other information providing economic value to the holder. In fact, it is not uncommon for patents and trade secrets to protect the same information. However, the bodies of laws governing each are far from similar. This paper explores the different origins, developments, protections, and consequences of patent and trade secret law to show their differences and numerous similarities. Not only are they substitutes for each other, but they are also complements of each other. This paper highlights a number of factors and considerations a company should evaluate when choosing between patents and/or trade secrets to protect its information.

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