Editing Trade secret (section)

== Comparison to other intellectual property laws ==

In the United States, trade secrets are not protected by law in the same way as [[patent]]s or [[trademark]]s. While the US Constitution explicitly [[Copyright Clause|authorizes]] the existence of and the federal jurisdiction over [[United States patent law|patents]] and [[copyrights]], it is silent on trade secrets, [[trademarks]], etc. For this reason, Federal Law for the latter types of intellectual property is based on the [[Commerce Clause]] (rather than the [[Copyright Clause]]) under a theory, that these IP types are used for [[interstate commerce]]. On other hand, the application of the Interstate Commerce Theory did not find much judicial support in regulating trade secrets: since a trade secret process is used in a State, where it is protected by state law, federal protection may be needed only when [[industrial espionage]] by a foreign entity is involved (given that the States themselves cannot regulate commerce with foreign powers).

Due to these Constitutional requirements,  patents and trademarks enjoy a strong federal protection in the USA (the [[Lanham Act]] and [[United States patent law|Patent Act]], respectively), while trade secrets usually have to rely on more limited [[State law (United States)|state law]]s. Most states have adopted the [[Uniform Trade Secrets Act]] (UTSA), except for [[Massachusetts]], [[New York (state)|New York]], and [[North Carolina]]. However, since 2016 with the enactment of the [[Defend Trade Secrets Act]] (DTSA), some additional trade secrets protection has become also available under federal law. One of the differences between patents and trademarks, on the one hand, and trade secrets, on the other, is that a trade secret is protected only when the owner has taken reasonable measures to protect the information as a secret (see {{UnitedStatesCode|18|1839}}(3)(A)).

Nations have different trademark policies. Assuming the mark in question meets certain other standards of protectibility, trademarks are generally protected from infringement on the grounds that other uses might confuse consumers as to the origin or nature of the goods once the mark has been associated with a particular supplier. Similar considerations apply to [[service mark]]s and [[trade dress]]. By definition, a trademark enjoys no protection (''qua'' trademark) until and unless it is "disclosed" to consumers, for only then are consumers able to associate it with a supplier or source in the requisite manner. (That a company plans to {{em|use}} a certain trademark might itself be protectable as a trade secret, however, until the mark is actually made public.)<ref>{{Cite web|url=https://www.uspto.gov/trademarks-application-process/filing-online/intent-use-itu-forms|title=Intent to use (ITU) forms|website=www.uspto.gov|language=en-US|access-date=2019-10-20}}</ref> To acquire a [[United States trademark law|trademark rights under U.S. law]], one must simply use the mark "in commerce".<ref name="USPTO-FAQ">United States Patent and Trademark Office, [http://www.uspto.gov/main/faq/index.html General Questions]</ref>  It is possible to register a trademark in the United States, both at the federal and state levels. Registration of trademarks confers some advantages, including stronger protection in certain respects, but registration is not required in order to get protection.<ref name="USPTO-FAQ"/> Registration may be required in order to file a lawsuit for trademark infringement.

To acquire a patent, [[Sufficiency of disclosure|enabling]] information about the method or product has to be supplied to a patent office and upon publication (usually, years before issuance of a patent), it becomes available to all. After expiration of the patent, competitors can copy the method or product legally. The most important advantage of patents (compared to trade secrets) is that patents assure the monopoly of their owners, even when the patented subject matter is independently invented by others later (there are [[Easement|some exceptions]]), as well as when the patented subject matter was invented by others prior to the patent's [[priority date]], kept as a trade secret, and used by the other in its business. Although it is legally possible to "convert" a trade secret into a patent, the claims in such patent would be limited to things, that are easily discernable from  examining such things. This means, that [[compositions of matter]] and [[articles of manufacture]] can not be patented after they become available to public, while [[Method_(patent)|processes]] can. 

The temporary [[monopoly]] on the patented invention is regarded as a [[Quid pro quo|pay-off]] for disclosing the information to the public.{{Citation needed|date=September 2019}}  In order to obtain a patent, the inventor must [[sufficiency of disclosure|disclose the invention]], so that others will be able to both make and use the invention.  Often, an invention will be improved after filing of the patent application, and additional information will be learned. None of that additional information must be disclosed through the patent application process, and it may thus be kept as a trade secret.<ref>[http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2165_01.htm#sect2165.01 Considerations Relevant to Best Mode] MPEP 2165.01</ref> That nondisclosed information will often increase the commercial viability of the patent. Most patent licenses include clauses that require the inventor to disclose any trade secrets they have, and patent licensors must be careful to maintain their trade secrets while licensing a patent through such means as the use of a [[non-disclosure agreement]]. Compared to patents, the advantages of trade secrets are that a trade secret is not time limited (it "continues indefinitely as long as the secret is not revealed to the public", whereas a patent is only in force for a specified time, after which others may freely copy the invention), a trade secret does not imply any registration costs,<ref name="klinkert-6">{{cite conference |url=http://www.miplc.de/research/lecture-series/ |title=The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid |first=Friedrich |last=Klinkert |date=April 2012 |conference=[[Munich Intellectual Property Law Center|MIPLC]] Lecture Series |access-date=May 6, 2012 |page=6}}</ref> has an immediate effect, does not require compliance with any formalities, and does not imply any disclosure of the invention to the public.<ref name="klinkert-6"/> The disadvantages of trade secrets include that "others may be able to legally discover the secret and be thereafter entitled to use it", "others may obtain patent protection for legally discovered secrets", and a trade secret is more difficult to enforce than a patent.<ref name="klinkert-7">{{cite conference |url=http://www.miplc.de/research/lecture-series/ |title=The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid |first=Friedrich |last=Klinkert |date=April 2012 |conference=[[Munich Intellectual Property Law Center|MIPLC]] Lecture Series |access-date=May 6, 2012 |page=7}}</ref>