Protecting Secret Processes: Patents vs. Trade Secrets

Imagine that for years, you have been using a secret process to create the best widgets in the world. No other widgets compare to yours in quality or durability. But recently you have been losing sleep. Information breaches and leaks have become commonplace, and you are wondering how long you can keep your secret process secret. Should you think about patenting that process? Unfortunately, it may be too late, but don't worry, there is a silver lining.

Patent law has long included an "On-Sale Bar" that prevents an inventor from patenting an invention that was on sale for more than one year before the patent application was filed.¹ In August 2024, the Federal Circuit Court issued an opinion in Celanese International Corporation v. International Trade Commission², reiterating that selling a product that was made according to a secret method triggers the On-Sale Bar. The Court noted that this has been the case since at least 1829 when it was first addressed by the