Keeping your idea secret with a patent?

Last week I was speaking with a company that created a new “secret sauce”.  They were convinced that this new sauce would revolutionize the market and become an instant best seller and were very eager to get their patent filed.    As we were talking through the patent process they mentioned they did not want anyone to know what was actually in their secret sauce and my ears perked up.    Patents are public documents and patents must teach the best way you know of to make your invention.  In their case, we could not get a patent and keep their ingredients secret.   What should we do?

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What about trade secrets? 

The first thing we need to figure out is what type of intellectual property (IP) is the best fit for the new idea and for their business plans.   If you want to keep your ingredients secret than a patent may not be the proper type of IP.  A trade secret could work here.   The nice thing about trade secrets is that you don’t have to pay $1000s like you do for a patent.   The downside with trade secrets is that if someone could easily reverse engineer your idea than they can copy you and you cannot stop them.   In the case of our secret sauce, the company thought it would be easy for their competition to figure out what is in their bottle so a trade secret did not work for them.  They also have industry rules where they have to disclose the ingredients and amounts on their packaging material which would also make it easy for someone to copy their ingredients. 

 

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Ideas that are easy to reverse engineer are not good candidates for Trade Secrets

 

 

 

Back to patents…

In  this case we ruled out trade secrets and went back to looking at patents.   A strong patent would protect their secret sauce and stop people from copying them, even if another group could easily reverse engineer the product.   But we are still faced with the problem that they must list all of their secret ingredients and the best way they know how to make the sauce in the formula.    At this point I decided to explore their business plan.   I asked them about their time-to-market and their potential customers.   Turns out, being the first to market and establishing contracts with their customer base was extremely important in their business.   Their plans were to hit the market quickly to grab as much market share as they can.   Ah ha.  This I can work with.   There are some tricks we can do to keep your newly filed patent secret or confidential for 18+ months.   In fact, it takes 18 months for the patent office to even publish your application so they were happy to hear they would have at least an 18 month window where they could both file a patent and keep their recipe secret.    To extend this window, we can file something called a “non-publication request” with the patent office.  This could keep the idea secret even longer (basically until it goes through the full examination process and issues as a new patent).   

They were delighted to hear I could buy them about 2 years of confidentiality while at the same time getting a patent filed and keeping their options open.   Using this non-publication request, they could even decide to stop the patent process and we could stop the patent application from publishing.   On the other hand, if they went through the process and their patent was approved that would help them by giving them a legal tool to stop any competitors that have entered into the market.  A win-win.  

Download The New York Times Bestseller List - Ny Times Best Seller Logo ...In summary, there are a lot of moving parts to consider when determining how to best protect your new idea.  New ideas that are easy to reverse engineer are typically not good for trade secrets and a patent may be a better fit.  On the other hand, patents and even patent applications are published online so it often does not make sense to file patents on ideas that would be hard to detect competitors.  For example, the New York times keeps their formula for determining ‘best sellers’ as a trade secret.  If they had filed a patent on that idea everyone could read the patent on the internet and then try to game their system to move their books higher on this rating list.