Arthur R. Lehman, L.L.C.

What is the difference between patents and trade secrets?

When it comes to protecting one's original work, many New York residents may be aware of the traditional forms of intellectual property protection available-trademarks, patents and copyrights. However, a fourth lesser known but equally important form of intellectual property also exists, known as trade secrets.

Trade secrets are basically information-formulas, programs, compilations, methods and patterns-used in a business and provides an opportunity for economic advantage if competitors know it. They can be manufacturing, industrial or commercial secrets. If an unauthorized person uses the information, it can be considered a violation of a trade secret and courts can protect the trade secret by enjoining misappropriation and ordering parties who have misappropriated it to maintain secrecy.

A patent also protects confidential information, so how then is a patent different from a trade secret? A trade secret can be used as an alternative to patents. Firstly, trade secrets are only protected as long as they remain a secret-if the holder fails to maintain secrecy then or if the information is independently discovered, trade secret protection is lost. However, patents protect against independent discovery. On the other hand, patents expire whereas trade secrets do not. There are also limitations on what can be patented, whereas almost anything can be a trade secret.

Where something is eligible for intellectual property protection under both heads, it is up to the individual or company to determine which to opt for. An experienced attorney may be able to guide authors and creators through the process to ensure they get the maximum protection they can under the law.

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