Keep it secret or file a patent?

Patent your idea or keep it secret?

If this question has crossed your mind, I’m willing to venture that your product or idea is not so simple. There must be something about your concept that is not easy for others to figure out. Let’s face it. If you have a simple product that others can easily copy, you wouldn’t be thinking about keeping anything confidential. It’s when your concept cannot be easily reverse engineered that the dilemma occurs. Keep it secret or file a patent? That’s the question we’ll address.

The Tradeoff: Giving Up Secret Information To Get Exclusive Rights

A bit of background will help set the stage. There is a tradeoff when you file a patent. In order to gain certain exclusive rights from the government, inventors must disclose detailed information on how to make and use their invention. Generally, the public benefits from the revelation of new technologies. In exchange for the public disclosure of your proprietary information, the government is willing to give you a patent. A general principle at work here is that society is better off when innovation is not kept secret.

What kind of information are we talking about? Such information is typically technical in nature, and must be sufficiently detailed. The disclosure in a patent application must enable others of reasonable skill in the field to make and use your invention. This is known as the enablement requirement.

In your patent application, you cannot withhold necessary information that others skilled in this area would require in order to make or practice your invention. If you want to keep your ideas secret, that’s your prerogative. Don’t apply for a patent. If you want to patent your invention, however, you will need to surrender the information necessary to educate others on how to make your invention.

Can others easily reverse engineer your product?

Perhaps the most important factor in deciding whether to keep your product secret or file a patent is the level of complexity. How easily can others reverse engineer your product? Do you have a secret sauce to make your product? Is there a secret to manufacturing your product at a lower cost or higher speed?

Knowledge can lead to power. And if you have powerful knowledge that is confidential, will others be able to be able to figure it out after breaking apart your product? Even if they can’t completely break the code, will they be able to come close enough to making a competitive product at a similar or lower price?

Patenting makes sense if your secrets will no longer remain confidential after your product launch. On the other hand, it might make sense to forego patents and keep your information confidential if you believe others will not be able to copy you.

What if your patent is not enabling?

I know what you’re thinking. You’re asking, “What if I file a patent, but hold back some key pieces of information?” Will you still get the patent? Perhaps, but your patent claims may be deemed invalid due to the lack of enablement. See MPEP 2164.06 for examples of enabling and nonenabling patents.

Can you keep your US patent application confidential?

There a few options to file a confidential US patent application.

First, US design patent applications are not published. So a US design patent will be made public if and when it’s granted.

Second, US provisional patent applications are not published. However, they made be publicly available at a later time if a linked nonprovisional application is ultimately published.

Third, you can file a request for nonpublication of a US utility nonprovisional patent application if you will not pursue any foreign patents. That way, your US utility patent will be public only if and when it is issued. Keep in mind that the nonpublication request must be filed concurrently with the initial filing of the nonprovisional. So you need to make a decision regarding confidentiality before filing the nonprovisional.

How to get the best of both worlds: Keep it secret and get a patent

Suppose you already filed a nonprovisional application without a nonpublication request. If it’s early enough, we might be able to help you. Email patent attorney Vic Lin at vlin@icaplaw.com or call (949) 223-9623 to discuss how we can help you keep your invention secret while appylying for a patent.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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