> If the government is going to give trade secrets the same protection as patents (or even more, because patent infringement doesn't come with jail time), companies have zero motivation to publish.
Despite both forms of IP enjoying legal protections, there are many reasons to prefer trade secrets over patents or vice versa.
It's much much easier to accidentally lose trade secret protection by inadvertantly divulging those secrets, so in that sense patents are more "durable".
You also can't use trade secret protections to prevent reverse engineering, so any invention that's easily observable and reversible is not suitable for trade secret protection.
Trade secrets also can't be used to protect from independent invention, so if someone else discovers your trick, you have no recourse.
Conversely, trade secrets apply to things that cannot traditionally be patented. The classic example is, of course, the recipe for coke, as recipes in general are not patentable subject matter
Trade secrets also have no expiration date, hence again, Coke.
Obviously this is a deep well and I've only just barely scratched the surface.
Trade Secrets were not protected under US law until 1996. All of the upsides of trade secrets you list are benefits that they have, despite a complete lack of government enforcement, as it should be.
Coke protected its formula for over a century with NDAs and effective security measures. They went through enormous effort and expense to protect the secret, because the law until 1996 said that they were responsible for their own secrets.
Some of Google's algorithms get leaked and they go whining to the government demanding that people be thrown in prison for espionage. It's a bastardization of the purpose of intellectual property.
There is nothing wrong with trade secrets. There is something very wrong with government underwriting the risk involved in building a business reliant on trade secrets. Patents exist as an incentive to publish: you show us your work, we let you have a total monopoly on it for 20 years.
Trade secret protections break that deal. If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret", then there is no reason to publish anything ever, the state of the art stagnates, and the technology industry becomes dominated by uncontestable monopolies with the power to throw you in prison if you look over their shoulders.
Well, lucky for you I'm not arguing on the merits of the law, only that it exists (and has since at least 1979 when the first federal law in this area was passed, though state protections pre-date that), and that the original commenter was mistaken in thinking it didn't.
As for the rest, eh, I genuinely don't care enough to argue. My original purpose was to correct a misunderstanding and provide some hopefully helpful additional context, not to argue for or against the ethical righteousness of various IP protection regimes.
> If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret"...
You're misunderstanding it. If you steal a secret's blueprints, the government will come after you. If you reinvent the secret's methods yourself, you're free to do whatever you want.
It is interesting that recipes are not art but rather fact. The same with fashion. I think that SpaceX has trade secrets rather than patents because there is nothing stopping China using the information in a patent whereas a trade secret is obfuscated.
So, given current US patent law, if SpaceX has some system/method/etc that is patentable material, but that they've chosen to retain as a trade secret, and someone else comes along and rediscovers the thing and patents it, then absolutely, SpaceX may then be in violation of that patent.
That's because, as of 2011, the US (and basically the rest of the world) works on a first-to-file basis:
Meaning: "In a first-to-file system, the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention."
Obviously this is not without controversy! The upside is it drastically simplifies patent filing, litigation, etc, since there can be no debate about who was the first to file a patent for an invention. But, as you point out, there are significant downsides.
I would claim FITF ultimately encourages patenting and thus public disclosure of inventions, which is overall better for the world than one dominated by protections with trade secrets. But I can't claim to have put a lot of thought into that position...
Do you think that documenting the tech and publishing a hash of the document would help? I've seen some services that offer to do this, but I'm not sure if this would work in a court of law.
First off, some background. In order to prevent someone else from patenting your idea, absent being the first to file it yourself, you need to disclose it in such a way that it qualifies as "prior art", thereby rendering invalid any subsequent attempts to patent the invention.
Now, what does that disclosure look like? First, let's talk about the Enablement Requirement:
Quoting from that section: "The information contained in the disclosure of an application must be sufficient to inform those skilled in the relevant art how to both make and use the claimed invention."
This is a general requirement both for patents, and for relevant prior art. In particular, with respect to prior art specifically, if you look at 2121 part III of the Manual of Patent Examining Procedure (https://www.uspto.gov/web/offices/pac/mpep/s2121.html
) you find the term "enabling disclosure":
"A prior art reference provides an enabling disclosure and thus anticipates a claimed invention if the reference describes the claimed invention in sufficient detail to enable a person of ordinary skill in the art to carry out the claimed invention"
There's also some rules about a POSITA being able to find the prior art. For example, with respect specifically to publications, in section 2128.2 of the manual (https://www.uspto.gov/web/offices/pac/mpep/s2128.html) we find:
"'A reference is proven to be a "printed publication" "upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, can locate it."'
So just writing down the invention and sticking it a drawer doesn't count! The inventor must have been able to find the prior art.
Anyway, this is all to say: Simply publishing a hash of a document to prove you have it is almost certainly not sufficient to invalidate a patent application, since such a disclosure clearly doesn't meet the Enablement Requirement for prior art, nor does it meet the requirement for being discoverable.
As a random aside: this touches on why the idea of defensive patenting or defensive publication exists. Suppose you come up with an invention where protection of the invention (either patent protection or trade secret) has no value to you, but where you want to avoid being sued by someone else in the case of independent invention.
In that case, it's not at all uncommon to file a patent application or otherwise disclose the invention in a notable publication (like, say, a journal) so as to prevent someone else from acquiring a patent on that invention. And note I say "application". You don't need to be granted the patent! The application is enough to qualify as prior art (and in fact it's not at all uncommon to see abandoned patent applications cited as prior art by patent examiners in patent prosecution wrappers, which are publicly available to anyone via the USPTO Public Pair system).
If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication.
> If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication.
I've certainly read my fair share of patents, and bluntly, I don't understand how you can make that claim. (har har)
Yes, patents are written with a POSITA (person having ordinary skill in the art) in mind, meaning you need familiarity with the area to understand them. A large part of the patent prosecution process is ensuring that the patent meets that standard. So I don't immediately buy that they're "very hard to replicate" for such an individual.
Heck, that would work against any individual patenting an invention, as if the patent cannot be understood by a POSITA, then it can't be easily enforced in a court of law. The entire Markman hearing process would fall apart if the judge couldn't form a coherent understanding of the claims.
Do you have examples where you believe this to be the case?
Pretty sure anyone could hire a few experts to duplicate the flavor of Coke exactly. Their moat is branding, partnerships and a huge distribution network, not some "secret recipe".
I think Coke's moat (in addition to branding) is their use of coca leaves, basically impossible for any other company to source legally (at least in the US: https://en.wikipedia.org/wiki/Coca-Cola#Coca_leaf
It's been accidentally disclosed a few times over the years. IIRC at some point someone offered to sell the recipe to Pepsi, and they refused on account of the legal mess it would put them in and perhaps a sense of honor
And the fact that "Pepsi Coke" is a marketing non-starter; they want people to buy Pepsi, and the people who won't buy Pepsi, but will buy Coke...will just buy Coke, not Pepsi Coke.
I thought I had a decent layman's knowledge of intellectual property across copyright, patents and trademarks, and had no idea trade secrets had any kind of legal protection whatsoever.
Very important knowledge to be aware of. Thanks for spreading the word.
Yup, I mentioned that specifically about half way down my comment. Tbf, I edited it a lot for a while there and added that later so you may have seen an earlier version. :)
You're definitely mistaken on that point. Trade secrets enjoy protection in the law, both in the US and worldwide:
https://www.uspto.gov/ip-policy/trade-secret-policy
> If the government is going to give trade secrets the same protection as patents (or even more, because patent infringement doesn't come with jail time), companies have zero motivation to publish.
Despite both forms of IP enjoying legal protections, there are many reasons to prefer trade secrets over patents or vice versa.
It's much much easier to accidentally lose trade secret protection by inadvertantly divulging those secrets, so in that sense patents are more "durable".
You also can't use trade secret protections to prevent reverse engineering, so any invention that's easily observable and reversible is not suitable for trade secret protection.
Trade secrets also can't be used to protect from independent invention, so if someone else discovers your trick, you have no recourse.
Conversely, trade secrets apply to things that cannot traditionally be patented. The classic example is, of course, the recipe for coke, as recipes in general are not patentable subject matter
Trade secrets also have no expiration date, hence again, Coke.
Obviously this is a deep well and I've only just barely scratched the surface.