BizTech Law Blog
What do Google and WD-40 have in common? They can both attribute their continued success to trade secrets. It may be relatively easy to build a search engine or an aerosol can that sprays lubricant, but it is practically impossible to replicate the success of Google and WD-40. The two companies do not have patents on their products, precisely because that would require public disclosure of how to produce the product that has made them so successful. The benefit of a trade secret is that it continues in perpetuity. Coca-Cola's trade secret for its formula is over 120 years old. If Coke had decided to patent its formula instead, the patent would have expired over a century ago and the company would not be the giant it is today.
In order to qualify as a "trade secret," the information must have economic value and must be kept confidential by the company. This can be done through legal documents, compartmentalizing information, physical and digital security, and enforcement actions against leakers of information. Tech companies should consider the use of trade secrets if a product is one that is not easy to develop independently. Software code and chemical formulas are two prime candidates. Importantly, trade secrets are governed by state law, which can vary as to confidentiality requirements.
It is time that we talk about design patents. Generally, when I mention design patents to potential clients, they invariably protest that they have an “invention” and not a “design.” However, most “inventions” at least contain ornamental elements that have the potential for design infringement in the marketplace. In those cases, pursuing a design patent, by itself or in combination with a utility application, can be an effective and affordable way to secure valuable intellectual property protection.
To help you decide if a design patent might be right for you, I have devoted this post to answering the most common questions I get regarding design patents.
