You will want to protect inventions that you have invested time and energy in to ensure that you at least recoup your investment. That protection can be arranged in several ways. You can patent your product or opt for a trade secret. The latter option is becoming more and more attractive since the enactment of the Trade Secret Directive. This new European intellectual property directive is coming into effect in June.
However, the question is when should you opt for a patent and when should you choose secrecy? I will try to point you in the right direction:
| Trade secret | Patent | |
| When | • If you want the trade secret to be secret FOREVER. • If your competitor cannot tell how the product is made by looking at it. • If certain important aspects of the product cannot be determined by analysis. |
• If your innovation is easy to forge. • If you want to use patents to increase the value of your business. • If you want to issue licences. • If you want to make use of the Innovatiebox. |
| Useful life | • Infinite, or until made public. | • The exclusive right ends after 21 years (provided you pay renewal fees). |
| Public | • The secret stays secret. | • Every patent application is published. Your innovation will therefore become public. The innovation can only be commercialised by others at the end of the patent. |
| Can a violator be challenged? | • Yes, certainly if the trade secret has been laid down in accordance with the Trade Secret Directive rules. Legal steps can then be taken against the violator of the trade secret. | • Yes, in the event of a violation the patent holder can challenge the other party and take them to court. (Alternatively you can start with a letter which is usually very effective.) |
This is a good basis to work from. Of course the details are more complicated. If you would like to find out more about the difference between patents and trade secrets and the consequences of the new European directive, please register for one of our Trade Secret Directive workshops.
