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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Vic Lin

Startup Patent Attorney, Cofounder at Innovation Capital Law Group
We align ourselves with Davids fighting Goliaths. Our registered patent attorneys help innovators get IP that drives funding, growth and sales. Email or call us so we can get to work on your IP: (949) 223-9623 | vlin@icaplaw.com