Patent Protection Is Not Always the Best Option

When a new technology is developed, obtaining a patent often becomes a priority. There are some situations, however, in which seeking patent protection is a less desirable option. One of those situations is when a technology is developed that cannot easily be reverse engineered—a technology that can be kept secret.

A classic example of this is the formula for Coca-Cola. Had the Coca-Cola Company sought patent protection, their patent would have expired in the early 20th century. However, because Coca-Cola knew that its formula could not be easily reverse engineered, the company opted to rely instead on trade secret protection. Now, well into the 21st century, Coca-Cola still has a secret formula and a brand that is very valuable.

A key to trade secret protection is in its name—keeping your technology secret. If a technology is in public view or can otherwise be easily reverse engineered, it’s very difficult to keep the technology secret. In such a situation, patent protection is preferable. The life of a patent is limited and extends 20 years from the filing date of a nonprovisional patent application assuming all maintenance fees are paid. In some cases, the term may be extended due to delay by the U.S. Patent Office during patent prosecution. In any event, the life of a patent has a definite ending point. Trade secrets on the other hand have no expiration. So if you have a new technology that can be kept secret with proper controls, you may want to seriously consider relying on trade secret protection instead of patent protection.