IP Intelligence › Real Scenarios › The employee who left
Real-life scenario · fictionalised
The employee who left
A senior engineer resigns and joins a competitor. Six months later, the competitor launches a product using an approach the engineer developed at his previous employer. The former employer never filed a patent on it - it was treated as internal know-how - and the engineer's contract contains a confidentiality clause and a promise to assign inventions.
What does the former employer actually have?
What is available and what is not
There is no patent, so there is no patent right to enforce. What remains is confidentiality: a claim based on the contract and the equitable duty of confidence, which in India is the main route because there is no dedicated trade secrets statute.
That claim depends on evidence: that the information was confidential, was communicated in confidence, and has been used. Which in turn depends on whether the company treated it as confidential in practice - access controls, marking, exit procedures - or simply assumed it was.
The decision that was made years earlier
Treating the approach as know-how rather than filing was a legitimate choice. It is the right choice when the technique is invisible in the finished product and hard to reverse engineer.
Here it was neither: the approach is inferable from the competitor's product. A patent would have been enforceable against them regardless of how they came by it - including if they had developed it independently.
What should have happened
- Run the detectability test at the point of the know-how decision: could a competitor work this out from our product?
- Documented the technical record with dates and named contributors, so authorship is provable.
- Operated a real exit process - inventory of projects, reminder of obligations, access revocation.
- Filed on the approach if it was going to be visible in the market anyway.
Trade secrecy protects what nobody can see. Everything else needs a filing.
This scenario is a composite teaching example written by Ragulika IP. It does not describe any real client, application or matter, and any resemblance to a specific case is coincidental.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
Related
What happens to IP when an employee leaves
Establish what they invented, confirm it has been assigned in writing, and run an exit process that captures the technical record before access is revoked.
Trade secret
Commercially valuable information kept confidential and protected through contract, access control and equitable duties of confidence rather than by registration. In…
Keeping it secret is always safer than patenting it.
Trade secrecy gives no protection against independent invention or reverse engineering. Patents do - at the price of publication and a fixed term.
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.
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.
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.