Before choosing secrecy over a patent

Run this at the point where someone says we should just keep it internal.

HighBefore filingFounderEngineerEnterprise

Both choices are legitimate. The decision turns on one question that is easy to answer honestly and easy to avoid.

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Could a competitor work it out from your product?A trade secret protects only what nobody can see. A visible feature is not a secret.
If yes: If yes, secrecy is the wrong choice - and a competitor may patent it first.
Could a competitor arrive at it independently?Trade secrecy gives no protection against independent invention. A patent does.
If yes: If the field is active, independent invention is likely rather than possible.
Is the technique detectable in a finished product or only in your factory?A process invisible in the output is often a better secret than a patent, which publishes it and gives you no practical way to police it.
If yes: If it is invisible, secrecy may genuinely be stronger.
Do you have real confidentiality controls, not just intentions?India has no dedicated trade secrets statute; protection rests on contract and the equitable duty of confidence.
If yes: Access controls, marking, employment terms and exit procedures - all of them, not one.
How many people know it, and how long will they stay?Secrets leak through people, usually at exit.
If yes: Run a real exit process: project inventory, obligations reminder, access revocation.
Would you be able to prove what was confidential and when?A confidence claim needs evidence that the information was communicated in confidence.
If yes: Document the technical record with dates and named contributors.
Does the technology have a long or short useful life?A patent lasts twenty years from filing; a secret lasts as long as it holds.
If yes: For long-lived, invisible process technology, secrecy can outlast a patent.
Have you considered doing both, for different parts?The device can be patented while the manufacturing recipe stays a secret.
If yes: Split the invention deliberately rather than choosing one answer for all of it.

The wrong version of this decision is the one made by default, because nobody wanted to spend on a filing.

Sources & further reading

The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text

In simple words

Trade secret

Commercially valuable information kept confidential and protected through contract, access control and equitable duties of confidence rather than by registration. In…

Beginner

Guide

Patent or trade secret: how to actually decide

One question settles most of it: could a competitor work it out from your product? If yes, secrecy is not available and you should file.

Beginner

HighScenario

The employee who left

What does the former employer actually have?

Before filingBeginner

Not sure whether this applies to your invention?

The honest answer usually needs someone to look at your actual disclosure, your timeline and the prior art. That is a conversation, not an article.

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Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.

Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.