Patents & Trade Secrets
Except for patented inventions, the only way to exclusively possess an idea is to keep it a secret.
Own Your Company's Innovation!
If your company is innovative, then your 'secret sauce' may be an invention, discovery, unique expertise, know-how, proprietary process, or any other idea that provides a competitive advantage by being used exclusively for your company and its customers. Patents and trade secrets are opposite sides of a coin, and both may be important ways to protect your company's valuable intangible property.
The best way to own and protect ideas, initially, is to keep your ideas confidential. But how can you keep everything secret AND scale your business? The Defend Trade Secrets Act of 2016 has made it much easier in the U.S. Learn more...
Trade Secrets v. Patents
But what is better trade secrets or patents? Or both? It can be hard to decide between patents and trade secrets until you know what the purpose is. Then, choosing the best way to protect your intangible property becomes much easier.
Patent law provides a way to protect 'inventions' for 20 years from the date of filing a patent application. Want to know if someone else has a patent or if your invention is patentable? Use the iP 'time machine' (search method) to find out.
What's The Value of Your iP?
Ocean Tomo's analysis of the S&P 500 show just how valuable your iP is. Of the total value of all companies listed on the S&P 500, more than 80% was intangible property. That means iP at least 5Xs business value, because more than $4 out of every $5 in total value is attributed to iP.
The part that iP plays in the valuation of innovative and creative businesses is likely even greater, because the S&P 500 includes heavily regulated industries, utilities, financial institutions and insurance companies, which are not particularly innovative.
Patents are expensive and your ideas might not even be considered an invention. Are patents worth it?
If your company's innovations give it a competitive advantage, then protecting this intangible property, your iP, is necessary! You at least need to make sure your company OWNS all of its innovative ideas. Right? The Entrepreneur's Guide to Owning Everything series includes training on how to own it and the iP 'time machine' should help you determine if your company's inventions are patentable or if someone already has a patent on it. (Pretty important to know before investing thousands in patents or marketing a new product.) If you can't purchase or license a patented, unexpired invention, then why not invent something new that designs around that third party invention? The iP 'time machine' shows you how to do that too!
What Is A Patent?
There are three different types of patents: utility, design and plant. Plant patents are a specialized area for plants that won't be discussed here. Design patents protect the look of products (ornamental features of an item of manufacture). Utility patents protect inventions such as machines, new materials, innovative processes, and things that are made by human manufacturing.
Design patents overlap a bit with protection afforded by trade dress and copyright law. A design patent usually takes less than a year to issue and grants exclusivity for the ornamental design for 15 years. Trade dress is a type of trademark right protectable under the Lanham Act, but trade dress rights must be acquired over time. So, design patents and trade dress work well together. Trade dress rights can exist forever, if used continuously and consistently.
Copyrights only protect the creative expression of things if the copyrighted expression is separable from the functionality of the thing. Copyright protects against reproduction of the artistic expression not the article, itself.
Utility patents are the types of patents that most people think about when they hear the word 'invention'. Let's look more closely at these types of patents.
The first step after conceiving a new invention is to conduct a search. You should know if someone thought of it first. And you have to know if there are any existing, unexpired patents that prevent you from making and selling a product. Right?
This initial search may be called a patentability search or a freedom to operate search. Whatever it's called, your search will need to do two things. Determine if you can sell your product (i.e. freedom to operate) and whether your invention is patentable (i.e. patentability). You need to know how these two things are very different and how your search should do both, without duplicating effort.
So, what's the next step, if your invention is patentable?
If your business is a small business, then 90% of the time, or more, you'll likely protect your invention as a trade secret, first.
You might also choose to file a descriptive provisional patent application, which serves to secure a filing date for a non-provisional application or international application, twelve months later.
See the patent process flow chart, below.
There are statutory bars that prevent you from getting any patent, ever, if you don't file BEFORE its disclosed or on sale.
So, if you need a patent...
U.S. Patent Process Flow Chart
Why Trade Secrets Are Your Most Cost Effective iP
Trade Secrets don't cost a lot of money to protect up front. Our iPscaling training may be all that you need to own all of your company's innovative ideas if you and all of your employee's, consultants and vendors are willing to transfer all rights in iP to your company.
You'll also need to take reasonable measures to keep your company's confidential, proprietary information secret, but if you have experience in your industry, this is probably something you've been doing already!
Here’s what people are saying about iPscaling...
About Chris Paradies
For more than two decades, Chris Paradies has been making it his mission to help innovative and creative business owners as their patent and intellectual property attorney and business mentor. Entrepreneurs that find intellectual property a difficult concept to master appreciate Chris’ ability to simplify difficult concepts without shortchanging the subject.
Chris’ passion for helping entrepreneurs and unique background -- graduating from West Point, serving as a U.S. Army officer, earning a Ph.D. at RPI, completing his J.D., summa cum laude, facilitating startup training, and serving as volunteer Chairman of the Board of Directors for the Tampa Bay Innovation Center -- have given rise to the iPscaling® program and the Concertina® principle.
Chris lives in Tampa, Florida with his wife and two sons.
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