While Not Right for Every Invention, Trade Secret Protection Has Its Appeal

Patenting has conventionally been the preferred way to protect intellectual property. There are good reasons for this: for example, it provides the most robust protection, enabling a patentee to sue in Federal court and obtain damages, an injunction, or both. And the establishment of the Court of Appeals for the Federal Circuit has stabilized U.S. patent law for a generation and eliminated the uncertainty caused by differing standards and application of the law in the several regional Circuit Courts of Appeal.

Recently, however, Federal Circuit and Supreme Court rulings, proposed and enacted changes to the patent laws, and a number of lower court rulings have upset the calculus favoring patents as the preferred intellectual property guardian. Injunctions are no longer necessarily “automatic,” for example, and U.S. patents are now published 18 months after their earliest priority dates (typically many years prior to patent grant). Also, there have been attacks on patent-eligibility for certain subject matter, such as gene sequences, business methods, and diagnostic methods. These developments make it imperative that other forms of protection, specifically trade secrets, be considered before important technology is disclosed to the public in a manner that puts the intellectual property embodied therein at risk.

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