Trade secret protection includes all types of information that the owner has taken steps to keep secret, including commercial, financial, and technical information. While traditionally trade secret protection for technical information has been regarded as “second best” to patent protection, this may be changing.
The America Invents Act has removed two disincentives to use of trade secret protection that had existed previously. First, by providing a prior commercial user defense to a patent infringement claim, it has reduced the risk that someone else will obtain a patent for the same idea that will require stopping something that one had been doing secretly for years. Second, the repeal of provisions that prevented one from obtaining a patent for an idea that one had previously abandoned, suppressed, or concealed means that, as long as no one else had previously published or publicly used the idea, it may still be possible to obtain a patent for it if one decides at some point to do so. Internationally, increased interest in trade secrets is evidenced by the European Commission’s proposal for harmonizing trade secret law among the member states of the European Union that was published at the end of 2013.