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ARTICLE · 31 AUGUST 2021

Trade Secret vs. Patent – A False Dichotomy

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Trade secrets and patents offer very different forms of protection, with different pros and cons. A trade secret may last indefinitely, while a patent has a fixed term of 20 years.

United StatesIntellectual Property
Steven P. Hollman
Steven P. Hollman
Rick Dunning
Rick Dunning
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Trade secrets and patents offer very different forms of protection, with different pros and cons. A trade secret may last indefinitely, while a patent has a fixed term of 20 years. Independent reinvention is permissible under trade secrets, but not with patents. And of course to obtain a patent, one must disclose the claimed invention to the public, in sufficient detail to enable one skilled in the relevant technology to make and use the invention.

Protecting the intellectual property embodied in an innovative product is often viewed as a choice between trade secret or patent protection, but these types of protection are not invariably mutually exclusive. One may use both, as made clear in the recent Seventh-Circuit case Life Spine, Inc. v. Aegis Spine, Inc., — F.4th —- (Aug. 9, 2021), 2021 WL 3482921. In this case, Aegis Spine appealed a preliminary injunction granted against it and its business partners in an action brought by Life Spine for trade secret

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