ALP: Do we need to patent protect our new product or process?

February 2004

Not necessarily. Most products or processes can be patented or held as a trade secret.

Patent protection is beneficial when your new development can be easily reverse-engineered. It is generally lawful to reverse engineer your competitor’s products and processes, so long as you use only publicly available information (such as a commercial product). Similarly, patent protection makes sense when you can police your patent and determine whether your competition has copied your idea. Patents can be a marketing tool - your customers may be impressed that your product or process is "patented". As a general rule, it makes sense to obtain patent protection on new products.

Trade secret protection may be preferable for developments that would be difficult to police. A patent may be less useful if you are not able to tell if your competitors are using it. In that instance, you run the risk of being unaware that the published patent or application has provided your competitors with instructions on how to improve their process or product. For new or improved processes, trade secret protection can make better business sense.

Obtaining a patent can be expensive, so it is best to carefully review each development before deciding on the most effective protection strategy. To be completely safe, you should make that decision before any product is sold or offered for sale to avoid being barred from patent protection.