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Choose Your IP Too: Trade Secrets and Patents


My little secret / written and composed by Franc L. Grannis.,My little secret, I have never told. [first line of chorus],There is a girl who is more than life to me. [first line], Digital ID 1255409, New York Public LibraryContinuing from our January 31st entry, and again using Richard Stim's Patent, Copyright and Trademark as our springboard, here is some brief information about the remaining two types of intellectual property; trade secrets and its "polar opposite", patents.

Trade Secrets: According to Benjamin Franklin, in Poor Richard's Almanack of July 1735, "Three may keep a secret, if two of them are dead." (See the Oxford Dictionary of American Quotations, for more quotes like this; available from NYPL's collection of databases with a library card!) A morbid thought, and likely a disasterous idea for any business that depends on secret information or processes for a competitive advantage.

In reality, businesspeople need to share secrets with partners or employees. Recognizing this, the law of trade secrets covers how, if your secret's in the sauce, you can share that recipe (or other secret) but still keep it confidential. It also offers remedies when someone steals your secret information. As this is generally court-made law in New York State, for those wishing to learn more, a good resource available at SIBL is the legal encyclopedia New York Jursiprudence Second, where information about trade secret law can be found beginning in Volume 104, in Section 246 of Trade Regulation.

Patents: Why are patents the polar opposite of trade secrets? Because to get your patent, you must reveal your "secret" to the world. In return, you get your monopoly for a fixed period of time (generally 20 years) but after that anyone who wants to can duplicate your "idea". In the U.S., patents are only created (more correctly "issued") by the Federal government through a filing and review process administered by the USPTO.

All U.S. patents are divided into three parts:

Utility Patents: The most numerous kind (almost 8 million issued since 1790), these patents are popularly associated with "inventions". They protect new, or more frequently improvements to, machines, processes and compositions of matter.

Design Patents: With about 632,000 issued (as of February 1, 2011), this group of patents is not that familiar to many researchers. Design Patents cover new and original designs ornamenting a manufactured article, but without improving its functionality (improving functionality would be a characteristic of a utility patent).

Plant Patents: The newest type of patent (begining in 1930) and least frequently issued (21,695 as of February 1, 2011). They apply to asexually reproduced plants. Unlike other patents, they have color illustrations and are still distributed to PTDLs in paper form. Not surprisingly, extremely few of these have been issued to residents of New York City.

How we all wish simple explanations like these could help every researcher decide which type of IP protection they need or want. But if we think about it, there are areas of possible overlap. To illustrate some of those, I would like offer a hypothetical situation, which I will discuss in an upcoming entry...


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