Memo Introduction, Facts And Laws, Precedent, and Facts to be Determined sections, Business Law

  1. Submit Final Project Part I Milestone One, the Memo Introduction, Facts And Laws, Precedent, and Facts to be Determined sections (Sections I, IIA, IIB, and IIC) of the memorandum. For additional details, please refer to the Final Project Part I Document and the Final Project Part I Milestone One Guidelines and Rubric document in the Assignment Guidelines and Rubrics section of the course.

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I see that quite a few of you are already asking me about the Milestone assignments.  Hence, I would like to begin providing some information in that regard for those of you who have begun working on Milestone One:

The Milestone assignments were not written by me.  They are common to all MBA 610 sections. As part of guiding you through successfully completing these assignments, I would like to inform you of important information regarding Final Project Part I. 

As someone who has worked in the intellectual property arena, I find that this scenario could benefit from the addition (or creation) of a few facts.  And at the same time, I would like to provide you with clarification of some important basic information regarding patents and trade secrets.  Hence, I am providing that with this announcement:

Not all valuable secrets are patentable.  For more information as to what makes something patentable, you might start here: http://ip-science.thomsonreuters.com/support/patents/patinf/patentfaqs/invent/.  But, for the owner of a secret that rises to the level of being patentable, there needs to be an evaluation as to whether it makes more sense to apply for the patent or to maintain the process, procedure, technology or invention as a trade secret.  There are many considerations including the potential gamble involved with filing for a patent.

When someone files for a patent, part of the “quid pro quo” (which means “this for that”) or what that person gives up in order to have the opportunity to potentially receive a patent is the requirement to give up the entire secret as part of the application process.  In that way, once the patent expires (twenty years in the future), the information contained in the patent goes completely into the public domain.  At that point, it may be used by anyone without permission or payment.

The upside is that should the patent application be successful, the owner of the patent has a government granted monopoly over the patent for twenty years from the date of filing.  The information is known to the public, but others may use it legally only with permission and payment if requested.  Further, there is no longer any need to protect the secret since it is already both revealed to the public and also legally protected from use by others.  The downside is that if the patent is not granted, then the applicant has lost the gamble, has revealed the entire secret to the public and now has lost any potential right to that process, procedure, technology or invention as a trade secret.  In other words, once the patent application is completed, it is not possible to reel the secret back in.

Trade secrets, unlike patents, must be kept secret.  And as long as the owner of the trade secret does everything “reasonable” to protect the secret and no one else independently develops the same concept, the secret does not expire nor is there any responsibility to reveal it to the public (or it wouldn’t be a secret).  In fact, with a trade secret, the burden falls upon the individual or company to protect it.  There is no government granted monopoly. 

What is deemed reasonable in order to protect the secret is more than what many would think to be reasonable. Required protections can include that the secret is only revealed to employees or contractors on a need to know basis.  Other reasonable protections can include dividing up the secret, if possible, with only certain employees knowing particular aspects of it,  having employees sign confidentiality agreements with real and meaningful consequences, hiding the secret from public view and from public air space, and locking it up if possible (think Mr. Krabs from SpongeBob SquarePants.) 

For some technologies, however, it is not possible to keep a trade secret and hence little is lost in applying for a patent.  For those processes, procedures or technologies that are easily “reverse engineered,” competitors can determine the “secret” through a careful analysis of the product, formula or component. Hence, once it is in the marketplace there is no option of keeping it secret in any case.  

In the Final Project Part I scenario, potential confusion could be created by the fact that in the real world a patent is not a secret (other than in rare circumstances such as where technology is a matter of sensitive national security and falls under the Invention Secrecy Act of 1951).  The fact that patents are not secrets is one of the key factors that distinguishes patents from trade secrets.  Hence, I recommend thinking about this scenario this way:

There is a patent regarding “Ever-Gold.”  However, in addition to that patent, after developing “Ever-Gold,” at a later date, Greene’s Jewelry came up with an even better process for creating “Ever-Gold” that is cheaper and quicker.  This new process for making quicker and cheaper Ever-Gold is a trade secret.  Greene’s was thinking of patenting this quicker cheaper process and hence has discussed it with its patent attorney.  But, Greene’s Jewelry has not filed for a patent on this process.  Nor has Greene’s revealed the secret to anyone outside the company other than to its intellectual property attorney.

Please read the document carefully, and obey the rules

 
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