Although United States patent applications are kept in confidence, all information in a patent becomes available to the public when the patent is eventually published. At that time, the trade secret status of any information disclosed in a patent is lost. Conversely, according to US law, public use or sale of an invention for more than one year abolishes the patentability of the invention. Sale of a product produced by a secret process is considered to be a public use of the process. In deciding whether to proceed with a patent or a trade secret, many factors must be considered.
Several factors weigh strongly in favor of patenting.
Other factors weigh strongly in favor of maintaining a trade secret. Other considerations are less clear in favor of one alternative or the other and require a balancing of several factors. In order to help with the decision process, this article discusses some of the advantages and disadvantages of patents and trade secrets. Keep in mind that there is no one answer that will be correct for every situation. The decision whether to patent or keep a trade secret must be based on the particular facts and circumstances regarding a technology and the circumstances of the business enterprise.