California companies: Patents, trade secrets or both?

Pretend you invented the 11-spice recipe for Kentucky Fried Chicken. Would you patent the mix of herbs and spices or follow the Colonel’s route and lock up the recipe? A marketable technique for cooking chicken is just one of many possible examples – California inventors and businesses have to make patent vs. trade secret choices all the time.

Forbes reported in 2010 that the original 1940 recipe for Colonel Sander’s “finger lickin’ good” chicken is secreted away in a 770-pound safe, surrounded by non-stop video surveillance and a very thick wall of concrete. In fact, someone who could reverse engineer the recipe – figure it out through analysis – still might not be able to duplicate the chicken’s unique taste. Cnbc.com reported last year that the pressure-cooking process KFC uses is patented.

Keeping trade secrets can be a lot like hiding money under a mattress – it’s safe until it’s not. One advantage of hiding company information from competitors is the expiration date. If you can keep a trade secret from being leaked, it’s yours for good. A patent, on the other hand, gives the inventor exclusivity for up to 20 years.

To obtain a patent, an inventor must divulge enough information so the invention is useful to the public once the patent runs out. A trade secret’s security comes from how well the inventor protects it from being stolen.

It’s likely that Colonel Sanders sat down with an intellectual property attorney. Sanders may have worried that the secret recipe would get out or that someone would decipher the spice mix through reverse engineering – or by pure luck. The Colonel probably wondered which people he could trust with the secret recipe.

The same conversation could be applied to your business invention. An attorney can help you sort out whether a patent is more advantageous than a trade secret. A legal consultant may also suggest splitting the difference, like KFC did, by patenting some intellectual property and hiding away the rest.

Source: blogs.hbr.org, “Filing for a Patent Versus Keeping Your Invention a Trade Secret” Orly Lobel, Nov. 21, 2013