The advent of technology necessitated the corresponding laws to effectuate the rightful ownership over inventions. Patent right is one of them. It is an exclusive right granted for an invention of a product or a process that provides a new way of doing something, or that offers a new technical solution to a problem. An invention in order to be patented must fulfil all the three criterions i.e. it must have an element of ‘novelty’, should have an ‘inventive step’ i.e it should be ‘non-obvious’ to a person ordinarily skilled in the field of the art and lastly, it must have industrial applicability. In terms of business, what lies beyond the patentable inventions and copyright-ability is the know-how, trade secrets and business relationships.

Companies in general, being artificial person may not have most of the rights that we have, but when it concerns intellectual property rights, US companies have so far successfully tapped these increasingly valuable intangible assets by enforcing trade secret laws. The secret recipes of KFC and Coca-Cola or be it the loyal customer base of IBM and Apple, these are information of confidential and commercial valuable nature which provide the company some competitive advantage.

In United States, patent law is governed by Patent Act (35 U.S. Code) whereas the Uniform Trade Secrets Act, 1979 protects the trade secrets. In comparison to other IP laws which are governed by federal law, trade secrets are governed by state law thus enabling owners to file civil law suit against infringers.

A trade secret doesn’t have to show novelty like patents, but the idea must be somewhat new to substantial number of people engaged in the relevant trade or industry. US corporations facing threats of espionage was the reason trade secret laws were enacted, and some corporations having patentable inventions preferred protection under trade secrets than patent law as there is no limit to the term of protection under trade secret laws. A patent has a maximum term of protection for twenty years only.

Furthermore, patent is a rigid form of protecting your rights especially in technological inventions as alternative ways can be used tobypass your technology. It also facilitates you to recover the losses incurred from patent infringement by filing a lawsuit in the nearby federal court. In the case of Pfaff v. Wells Electronics, Inc., 525 U.S. 55 (1998), the plaintiff designed a computer chip for his company, Texas Instruments which was put on sale later. After a year, the plaintiff filed for patent and after it was granted, he went on to sue the defendant for patent infringement. The court held that, even though the invention was patentable, the plaintiff lost his rights because it was not patented before it was put on sale.

The patent filing is a lengthy affair which involves filing a provisional application at the United States Patent & Trademark Office (USPTO) and costs quite a lot. The USPTO facilitates the hiring of an attorney which eases the process to an extent and helps you understand the requirements of an invention to be patentable.

Consider yourself in a situation where the patent application is pending but to successfully run your business you have to disclose vital information to your employees or dealers. In this case, it is suggested to make sure that your employees/dealers sign a Confidentiality Agreement which bars them from disclosing any trade secret.

Nonetheless if you are running a company, you should consult a professionalto ensure that your employees sign an “enforceable” confidentiality agreement, to neither disclose any trade related information, nor to start a related trade even after they leave their jobs. It is also advised that you consult a practising professional for preparing such agreements as they involve technicalities known only to professionals.

Moreover, with the increasing competition in markets and dearth of technical know-how and business plans, patent infringement and trade secret misappropriation has seen a rise in the scale. Hiring a professional expertwould come in handy as it would save you from the risk of losing trade information and help you in executing a convenient and successful registration of a patent. Please contact our law firm ilexlaw pllc via email

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