Many new small business start-ups are under the misapprehension that their idea, concept, approach – the thing that gets them up in the morning and keeps them motivated to make a change in the world – must be protected by a patent, a trademark, a copyright, or some combination of the above, as a threshold to moving forward. There is no doubt that exploring these issues early on is a good idea on the road to starting a business. For example, you would want to know if your improved mousetrap is already being developed by somebody else. However, there is another alternative that can, in some instances, provide a level of protection to the start-up without the necessity of incurring legal fees. In May of 2016, President Obama signed into law the Defense of Trade Secrets Act (DTSA). A trade secret is confidential, commercially valuable information that provides its owner with a competitive advantage. Prior to enactment of the DTSA, theft of trade secret claims could only be brought in state courts, and results from state to state could be inconsistent and unpredictable. Now, federal courts may be available to protect these valuable intellectual property assets.
Typically, a small business owner may want to consider using trade secret protection for information that leaves no public “footprint” – for example, a manufacturing process that cannot be reverse engineered. In such circumstances, maintaining the process as a trade secret may be preferable to patent protection – a patent reveals all aspects of the process to the public and is only available for a limited period of time. Trade secrets, on the other hand, provide no public information and in theory can extend in perpetuity.
So be sure to consider the best way to protect your secrets. In our next article we will consider how to protect your trade secrets – there are of course rules about that!
Director, UConn IP Law Clinic