When an inventor has created an innovation, she traditionally patents the idea. Patenting allows her to prevent others from copying her idea for the life of the patent. It also prevents a later inventor who conceives of the idea independently from subsequently patenting the same idea and then preventing the original inventor from using her own invention.
However, there is another option for protecting an invention without filing for a patent, the option of secrecy. Using secrecy to protect an invention, the inventor simply does not disclose the details of the invention by filing a patent application or through publication or other public disclosure.
Secrecy is an effective protection when the important invention cannot be readily discovered. For example, chemical processes are often difficult to discover even if one knows the composition of the final product. The formulas and processes may be difficult to determine, even after expensive experimentation. Similarly, software inventions cannot be reverse engineered if they are kept securely protected on the inventor's own servers.
If another inventor later independently creates and patents the same invention, the original inventor has a defense against a charge of patent infringement because of her prior commercial use of the invention. This defense is available if the original inventor used the invention commercially a least one year before the subsequent inventor either filed the patent application or publicly disclosed the invention prior to patenting the invention. However, if the use was less than a year before the subsequent inventor filed the patent application, then the original inventor has no prior commercial use defense.
Protecting an invention by keeping it secret is probably a risky strategy if one's competitors are pursuing a similar product development strategy. They may develop the same invention and file for protection before a full year of commercial use has established the prior commercial use defense. And they are likely to try if one's own product using the invention is successful. However for inventions that are difficult to discover and that one believes competitors will not discover independently soon, secrecy is an excellent option.
An inventor choosing secrecy should treat the invention as a trade secret, limiting the internal dissemination of information about the invention and marking the information as secret or confidential. The inventor should also rigorously document the earliest date of commercial use.
The biggest advantage of secrecy is that it never expires. However, valuable secrets are often discovered independently and surprisingly quickly by competitors, or they are leaked or stolen. Competitive advantages do not usually go unnoticed and un-duplicated for long.
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