Protecting Intellectual Property: Patent or Trade Secret?
Each Form of IP Has Its Own Advantages
When it comes to protecting intellectual property, most people think of the Big Three: copyrights, patents, and trademarks, which I covered in an earlier article. Now I’m going discuss two of the lesser-known but equally interesting areas of IP: trade secrets and the right of publicity.
KEEPING AN INVENTION SECRET
Let’s say you have an invention. You don’t want your competitors copying it. Most of the time under these circumstances, you would then want to patent that invention.
But not all of the time. The tradeoff for a patent is that the government will grant you a monopoly on the use and sale of your invention for a limited time. However, you have to expose everything about your invention to the world. From a social standpoint this advances inventiveness: your competitors can’t just make what you made, but they have a platform to build on what you made and make it even better.
This self-exposure puts you at greater risk of criminals producing unlicensed and illegal versions of your product. After all, you essentially just gave them the blueprint on how to make what you are making.
Another option for an invention is a trade secret. If you take key actions to keep anyone from discovering how to reproduce your invention, most countries will allow you to take legal action against anyone who illegally obtains those secrets and uses them without your permission.
A protectable trade secret must be something not known already to the general public. Keeping it secret must provide the inventor some sort of economic advantage. And you have to take reasonable steps to keep it secret, at the very least attempting to control who has access to the information and make them agree to keep it secret.
There are several advantages to taking the trade secret, as opposed to the patent, route. Patents can take years to issue, but a trade secret is protected from the beginning. Patents cost thousands of dollars. Protecting a trade secret properly can also cost a great deal, but it doesn’t have to. Much depends on how many people have to know the secret in order to turn it into money.
Patents eventually expire. But a trade secret can last forever. Coca-Cola has kept its formula secret since 1886.
Just as a patent isn’t always the best tool, neither are trade secrets. Some inventions are so easily reverse-engineered that there is nothing for a trade secret to protect. Also, the ability to sue someone after they have exposed your secret to the world may be of little comfort if that exposure marks the end of a profitable business.
PROTECTING THE RIGHT OF PUBLICITY
The right of publicity is one of the youngest forms of intellectual property to be generally recognized internationally. It is also, in many ways, the least understood and most controversial.
The right of publicity is the right that a person has to control the commercial use of their name, image, signature, and other identifiers.
The right of publicity generally pops up only when we’re talking about the rich and famous. Most laws require the unauthorized use of someone’s publicity right to be a commercial venture. Billions of dollars are spent annually to license the images and endorsements of famous persons and to connect them to products and services sold globally. That’s why these intangible rights have value to the people who own them.
Right of publicity laws vary greatly and it is an area of the law that is still much in flux. It is in some ways the opposite of a right to privacy. But in many ways it represents the same desire – a desire to control what, when, and how the world encounters a person’s identity.
Controlling the exploitation of someone’s identity gets harder and harder with each new technological advancement. So no one should expect this area of the law to settle down anytime soon.
William Mansfield is director of intellectual property at ABRO.
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