Patents+and+Trade+Secrets

A patent is an exclusive protection provided by the government to an inventor to manufacture, use and sell his or her invention for a specific number of years. (Patent, 2009). The United States and the Canadian constitution both provide protection for patents. A patent protection is present “to promote the progress of science and useful arts by securing for limited times in authors and inventors the exclusive right to their discoveries.” (Bird, 111). If the government were to provide its members with protection for their work and inventions then it motivates individuals to discover and invent new things for the progress and growth of society. Canada and the United States grant a patent right for twenty years from the date on which the application for it was filed. (Bird, 111 and Patents, 2008). United States In the states, the U.S. Patent and Trademark Office (USPTO) is present to assign and effectively oversight the patent laws. The United States constitution states that, “Congress shall have power...to promote and progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Bird, 112). Patent laws not only provide protection for an invention they also provide protection against theft. (Bird, 113). The patent act can be understood as a bargain that is taken between the two parties- the government and the inventor. The inventor is required to provide complete information on the invention to the government and in return it ensures a monopoly for the inventor. The process of patents makes it possible for all the information to come into public view and this could be damaging because other companies become familiar with your invention and this is why trade secrets are present because trade secret laws protect the information making it possible that no part of the invention is publicly revealed. There are three requirements that are set which specify what can be patented. The requirements for patents are, “an invention or discovery (such as of a machine, article, process, or composition) that is novel, useful and nonobvious” (Bird, 114-115). An invention or discovery Any kind of invention and discovery is patentable according to the law if the result the discovery produces is tangible, useful and concrete. It also includes anything that made by the man under the sun and it can also include inventions and discoveries which are natural or made by man. Furthermore, “laws of nature, natural phenomena, and abstract ideas”, such as purely mental processes, naturally occurring phenomena and scientific laws constitute as inventions which are not patentable. (Bird, 115). But exceptions still exist because sometimes things that produce a reasonable result are allowed to be patentable. For example, the sun in itself is not patentable but if the light and energy from the sun is used for the invention of something such as photovoltaic cells then that becomes patentable. Thus, a lot of inventions and discoveries are patentable depending on their usefulness. (Bird, 115) Novel In this case the invention ought to have been not invented, patented or published before and it should not have been available for public usage, such as public sale more than a year prior to the date on which the application for the patent was filed. In order for it to be a novel the invention has to have a practical benefit, it needs to operate, perform and accomplish something useful. Nonobvious The patent subject matter in this scenario has to be non obvious and not easily anticipated. This requirement states that it is a necessary that the invention which needs a patent is not obvious or anticipated to an individual who has ordinary skills in the field of the invention. For example, a new innovation in a bridge design is not patentable if the engineer just changed the measurements of the bridge and the new bridge is a simple substitution of one material with another. If this is the case then the invention is obvious to another engineer, and it does not fulfill the requirements of not being obvious, and another person for the same field being already familiar with the invention. In relation to the business patent methods the requirement of nonobvious is a debatable issue because often Internet applications such as the commonplace events of shopping and browsing were easily anticipated to become the next that the field of ecommerce takes. (Bird, 116) Types of Patents In the United States there are three different types of patents. The first type of patent is utility patents, which include the business class patents. These patents consist of machines, compositions of matter and article of manufacture etc. the second type of patents are design which are new, original and ornamental design for articles of manufacture. The last category of patents is plant patents which are inventions or discoveries relating to the reproduction of plants. (Bird, 117). One of the main aspects of a patent is the writing of the patent, the inventor has to clearly describe in great detail what the patent is supposed to accomplish and what it would cover. Under the United States patent office, the person that if two individuals file for the same patent at the same time, then the individuals have to prove who was the first person to invent the patent. This requires an inventor to keep record and track of all the inventions that they have made. (Bird, 117 and Wensley, 2009). Furthermore, a business method patent includes any process which includes data processing, calculations, conversions, which are going to be used for business operations and management. The business method patents do not consist of any definite rules and there is no exact definition for them. (Bird, 119). In a case involving ACTV, Inc. v. Walt Disney Co., concerns regarding infringement of patents were considered. ACTV, accused Walt Disney of infringing their technology. ACTV system allowed for synchronizing internet programming draw from web, with video and television programming. Walt Disney’s system allowed users to synchronize some Disney programs from certain Disney websites. The court dismissed ACTV’s claim because it believed that Disney’s device “did not meet every limitation of plaintiff’s patent, either literally or by equivalents.” (ACTV, Inc. v. Walt Disney Co., 2009; Bird, 129). Disney in this case had to prove that the patent process was not new, useful and nonobvious and therefore, the patent office should have never granted ACTV with the patent. Furthermore, Disney had already used the process before and it established prior art. In this case it was very hard to prove patent invalidity and this was one of the main reasons that the judge dismissed the claim. (Bird, 129-130). Increasing use and development of technology has raised many concerns in the area of business patents for organizations. Canada and the European Union Likewise, to the United States the Canadian law provides inventors the protection to protect theri invention under the Canadian patent act. Under the Canadian Patent Act, an invention is defined as, “any new and useful art, process, machine, manufacture or composition of matter.” (Kerr, 2009). Just like the United States, an invention is patentable if it is nonobvious. Once the patent right is provided to the inventor it grantees them with the “exclusive right to make, sell and use the patented invention in Canada throughout the life of the patent.” (Kerr, 2009). The European Union provides its business community with a limited opportunity to secure business patents. In the European Union there are two classes of business method patents. The first class is the one that contains the technical features whereas the second class is the one that does not contain any technical features. In order for an invention to be patentable it has to posses both technical and non technical features, and the technical feature should provide a “sufficient patentable contribution.” (Bird, 133). Thus, all the nations provide its inventors with patent laws that would promote inventions. Trade Secrets A trade secret is information that is owned and invented by a business which provides them with a competitive advantage over other businesses. Trade secrets protection is granted with no government intervention and it protects everything that holds economic value to a business. When comparing to trade secrets, the protection provided by patents is relatively less, because in patents subject matter are required to be novel, useful and nonobvious. The trade secret law consists of three common components. Firstly, the trade secret “is known only to the business.” (Bird 135). This guarantees protection from any outside party which may use the secret to their advantage. In addition, “it affords the business competitive advantage over others in its industry” and it “is kept secret continuously by means of reasonable steps.” (Bird, 135). These laws guarantee an organization upmost protection in guarding their trade secrets and make it possible for others to not take advantage and gain competitive edge over the company. Some of the problems associated with business method patents and trade secrets is that no all nations provide its organizations with protection or if they do then it is very limited; moreover, some countries do onto recognize trade secrets because they have not yet developed trade secret laws. (Bird, 143). It is essential that the social networking site patents its product design, which will assure that no one else can use it for their benefit. Furthermore, the social networking site needs to make certain that their trade secrets are guarded and there are no areas of vulnerability when it comes to their employees, vendors and consultants. Also, the networking site management should keep into consideration that business method patents are fully protected in the United States whereas, they are least protected in Europe. Therefore, it is important for the management to pay close attention to the matters jurisdiction. (Bird, 145). Even though there are protections provided to safeguard business method patents and trade secrets they are still not comprehensive enough that they can protect an organization in every nation.

Works Cited: “Patent.” Dictionary.com. 8 April 2009. <[]>. “Patents.” Canadian Intellectual Property Office. 9 May 2008. 6 April 2009. <[]>. “ACTV, INC v. The Walt Disney Company.” 8 April 2009. <[]>. Ferrera, Gerald R., Stephen D. Lichtenstein, Margo E.K. Reder, Robert C. Bird, and William T. Schiano. __CyberLaw:Text and Cases__. 2e ed. United States: Thomson Corporation, 2004. Kerr, B. Philip. “Patent Law in Canada.” 8 April 2009. .