Patents and trade secrets present somewhat opposing choices. Trade secrets derive their legal protection from their inherently secret nature. Patents, by contrast, can only be protected through public disclosure. In fact, a patent will be invalidated if the inventor refrains from describing important details. This requirement, called enablement, requires a patentee to disclose enough information for others to use the invention after the patent has expired.

Budget constraints and the costs for filing a patent force a smart evaluation of your options. When facing the choice of patenting or hiding a valuable innovation, you must first ask yourself whether the invention is patentable at all. Does is it meet the legal requirements of non-obviousness, novelty, and usefulness to be granted a patent? If not then a Trade Secret is the obvious choice. A trade secret is also a good choice if the invention be useful beyond 20 years, or if it is part of an internal manufacturing process.

A trade secret may not be the best choice if it possible for other companies to reverse engineer it, if the invention is detectable and embedded in the product itself, if the invention is likely to be independently discovered in the near future, or if the product regularly observed in public settings.

Element 2 of a Trade Secret
Element 1 of a Trade Secret
Element 3 of a Trade Secret