are a limited government monopoly bestowed on inventors who create a sufficiently novel product or process and file the necessary applications. A grant of patent enables the inventor to prohibit others from making his invention in the United States for up to twenty years. Other countries provide similar patent rights.
To obtain a patent, an inventor must file a patent application, which describes the best form of the invention and why it is an improvement on the existing state of the art. The application is made in confidence to the U.S. Patent Office, where it is examined for novelty. If a patent is issued, the invention is made public by the patent office, and the inventor relies upon the patent to prevent others from copying his invention. If a patent is not issued, the patent office makes no public disclosure, and the inventor is left to rely on the trade secrecy of the invention to protect it from being copied.
Only individuals can be inventors, and only inventors and their assignees are entitled to patent protection. As a result, it is important for companies to take steps to insure that they obtain the patent rights to inventions developed by their employees and others hired to conduct research. Employee inventions often become the property of the employer by operation of law, but there are exceptions to this rule that depend on the scope of the employee’s job responsibilities and the manner in which the invention is developed. To be certain of acquiring the patent rights to which they are entitled, companies should require their employees and consultants to enter into written agreements that clearly set out the company’s rights to inventions. In many cases, these agreements can be included as part of an employment or secrecy contract.
Patents are not always the best way to protect an invention. This is because they require a high degree of "novelty" before they are available, they require the inventor to disclose his invention to the public, and their issuance does not guarantee their validity (and thus enforceability) against a challenge by a competitor. The high degree of "novelty" required means that many inventions may not qualify for patent protection even though they may qualify for trade secrets protection. Even for a sufficiently novel invention, the patent disclosure may enable others to reconstruct the invention and help them design around the scope of the claims in the patent. Also, patent disclosures allow others to examine the invention’s patent for weaknesses that might enable them to challenge its validity. If they succeed, the inventor’s patent protection will be lost, and he will be unable to protect his invention as a trade secret.
There are many situations in which a company might choose to forgo patent protection in favor of trade secrecy protection. For example, if the new product cannot be "reverse engineered" or reinvented (that is, a competitor cannot duplicate it once it appears in the marketplace), trade secrecy protection, which is not limited to seventeen years, might serve the company’s interests better.
The formula for Coca-Cola® is one example of a product that was better protected by keeping secret its ingredients than it would have been by applying for patent protection. If Coca-Cola had secured patent protection, its formula would now be available to everyone as a matter of law. By keeping it secret instead of securing a patent, Coca-Cola has managed to retain the exclusive rights to the formulation long after its patent monopoly would have expired.
Sometimes a new product does not warrant the cost or time necessary to secure patent protection. A newly invented process that is only one of many cost-effective methods for obtaining a certain result may not give the inventor a sufficient competitive advantage to warrant the expense of preparing and filing for a patent. If the patentable portion of a new product does not add significantly to its commercial value, or the application for the patent would require disclosing other proprietary methods that are valuable but not protectable by patent, reason may suggest that the patent process is better ignored. Sometimes a company simply cannot afford to apply for patent protection in every country in which it needs it and so forgoes it in the United States to avoid disclosing its invention to the world and losing its ability to claim the protection of secrecy elsewhere.
Any inventor who is concerned about protecting an invention should consult with an experienced attorney. An attorney who specializes in patent law can provide a complete explanation of the patent process and the advantages of choosing patents or trade secrecy to protect an invention. There are many pitfalls in the patent process, including strict time limits during which a patent application must be filed in order to qualify. Foreign patents must be timely filed also, or the ability to secure them can be lost. Only an experienced patent attorney can guide an inventor through the process without the inadvertent loss of protection. See: Employment Contracts, Licensing, Trade Secrets.