Patent or trade secret: how to actually decide

The detectability test

A trade secret protects only what nobody can see. A feature visible in the product, or inferable from testing it, is not a secret however carefully you guard the documentation - and a competitor who works it out independently owes you nothing.

A process that happens in your factory or on your servers and leaves no trace in the output is different. There, secrecy can genuinely be stronger than a patent, because a patent publishes the method and gives you no practical way to police it.

What each right actually gives you

A patent lasts twenty years from filing, works against independent inventors, and can be licensed and valued. It costs money every year and requires you to publish how it works, including the best method known to you.

A trade secret costs nothing to register, lasts as long as it holds, and gives no protection against reverse engineering or independent invention. India has no dedicated trade secrets statute, so protection rests on contract and the equitable duty of confidence - which means the controls have to be real: access restrictions, marking, employment terms and a genuine exit process.

The answer is often to split: patent the device, keep the recipe secret. Note one constraint - a patent must disclose the best method known to the applicant, so you cannot patent the device while deliberately withholding what makes it work.

What to actually do

• Ask whether a competitor could work it out from the product. That is the whole decision.
• Split the invention deliberately rather than choosing one answer for all of it.
• If you choose secrecy, put real controls in place - intentions are not protection.
• Revisit the decision when the product changes.