LAST REVIEWED: SEPTEMBER 2026
By Dr Ritchie Lewis Daniel, Chartered Patent Attorney and European Patent Attorney
When a business develops valuable technology, an early question is whether to seek patent protection or keep the technology secret. The answer can affect product development, fundraising, collaboration, licensing and what competitors are free to do.
There is no automatic winner. A patent can be useful where disclosure is acceptable and you want protection even if a competitor develops the same technology independently. A trade secret only works while the information can realistically stay secret. Many products need a mixture of both.
Not always either-or
A patent strategy and a trade secret strategy should not be treated as mutually exclusive across an entire product or business. A patent application may protect a core technical concept while manufacturing parameters, testing methods, calibration data, software deployment processes or commercial information remain confidential.
The useful question is therefore not simply “patent or trade secret?”. The better question is: which aspects of the innovation should be disclosed in return for potential patent protection, and which aspects can create lasting value if kept confidential?
What does a patent protect?
A patent can protect a technical invention, such as a product, system or process. A granted patent may allow the owner to prevent a competitor from carrying out the claimed invention, even where the competitor developed the same solution independently.
Patent rights are territorial, so protection must be sought in the countries that matter to the business. Deciding where to seek protection may involve considering key markets, manufacturing locations, competitors and wider commercial opportunities.
Patent applications are generally published, so the patent process usually involves disclosing the invention to the public.
Patent protection also depends on what has gone before. An invention generally needs to be new over what was already available to the public before the relevant date. Earlier disclosures can come from anywhere in the world and in any language. Other requirements for obtaining valid patent protection vary between jurisdictions.
Explore RIDAN IP guidance on patents as an intellectual property right or the patent services available to innovative businesses.
What is a trade secret?
A trade secret is valuable information that is not generally known and is protected through reasonable confidentiality measures. Depending on the business, trade secrets may include technical know-how, algorithms, formulas, manufacturing methods, process settings, test results, data, supplier information or commercial plans.
Unlike a patent, a trade secret is not registered and does not require publication. The protection depends on the information remaining secret and on the business taking reasonable steps to preserve confidentiality. Those steps may include identifying the information, controlling access, using suitable confidentiality obligations, managing external disclosures and training relevant personnel.
Explore RIDAN IP guidance on trade secrets as a form of protection or the trade secret services available to businesses.
Patent advantages
Protection against independent development. A patent can be relevant even where a competitor did not copy the invention. This can be particularly important where competitors are likely to arrive at similar technical solutions.
Protection where the product reveals the invention. If a competitor can understand the innovation by inspecting, testing or reverse-engineering a commercial product, secrecy may be difficult to maintain once the product reaches the market.
A defined asset. Patent applications and granted patents provide identifiable rights that can be owned, assigned and licensed. For some businesses, a clearly defined patent portfolio can support investment, collaboration, licensing or acquisition discussions.
A visible deterrent. A published patent application puts competitors on notice that patent protection is being sought and may influence how they approach the same technical area.
Patent limitations
Disclosure is required. The application must describe the invention sufficiently. Once published, the technical teaching is no longer secret.
Not every valuable idea is patentable. Patentability depends on legal and technical requirements. A commercially important method, dataset, commercial process or implementation detail may fall outside useful patent protection.
Scope is not guaranteed. Filing an application does not guarantee grant, and examination may narrow the practical protection obtained.
Territorial decisions matter. Protection must be pursued in the territories that justify the investment. A business should avoid default filing patterns that are disconnected from commercial plans.
Technology can move faster than patents. Patent applications can take several years to reach grant, while some technologies have a much shorter commercial life. Patent protection is also time-limited, so the expected life of the technology should form part of the decision.
Trade secret advantages
No publication. A trade secret can preserve information that would lose value if disclosed.
Potentially long-lasting protection. Confidential information may remain valuable for as long as secrecy can be maintained and the information continues to provide commercial value.
Broad subject matter. Trade secret protection can apply to information that may not be suitable for patent protection, including detailed know-how, data and operational methods.
Useful for continuous development. Where processes evolve frequently, a managed body of confidential know-how may fit the development cycle better than repeated patent filings.
Trade secret limitations
Independent development remains possible. Trade secrecy does not generally prevent a competitor from developing the same solution independently.
Reverse-engineering may undermine the strategy. If the innovation becomes apparent from the marketed product, maintaining secrecy may not provide meaningful protection.
Confidentiality must be actively managed. Trade secret protection is not created merely by calling information confidential. The business needs practical controls that reflect the value and sensitivity of the information.
Disclosure can be irreversible. Once information becomes public, the opportunity to rely on secrecy may be lost. Public disclosure may also damage the prospect of obtaining valid patent protection.
Key decision factors
A useful assessment should consider the following questions:
- Is the innovation likely to meet the patent requirements?
- Will the product or service reveal the innovation?
- Could a competitor independently develop the same solution?
- Could use of the innovation be detected in practice in a competitor’s product or process?
- Can access to the relevant information be controlled in practice?
- How long is the innovation expected to provide commercial advantage?
- Which countries matter for sales, manufacture, licensing or enforcement?
- Will publication help or hinder the commercial strategy?
- Are suitable confidentiality and ownership arrangements in place for employees, contractors, suppliers and collaborators?
- Does the protection strategy support commercial plans for investment, partnership or exit?
Detectability matters too. A patent is most useful where use of the protected invention can be identified. If an innovation relates to an internal process, manufacturing method or other feature that cannot readily be detected from a competitor’s product or activities, enforcement may be difficult. In those circumstances, keeping the innovation confidential may sometimes provide greater practical value.
Combining patents and trade secrets
Yes. A combined strategy is often more realistic than choosing one form of protection for everything.
For example, a patent application might describe and claim a new mechanical system, while detailed tolerances, control settings, validation procedures and manufacturing techniques remain confidential. Care is needed to ensure that information essential to the patent application is disclosed properly while genuinely separate know-how is managed as a trade secret.
The boundary should be deliberate. Attempting to omit necessary technical information from a patent application merely to preserve secrecy can weaken the application. Equally, disclosing valuable implementation knowledge unnecessarily can reduce the commercial value of confidentiality.
Protect before disclosure
A non-disclosure agreement (NDA) helps, but an NDA is not a disclosure strategy by itself. Before speaking to investors, customers, manufacturers, universities or development partners, decide what really needs to be shared and what should remain confidential.
Before an important disclosure, identify what will be shared, who needs access, whether a patent application should be filed first and which information should remain compartmentalised. This is particularly important for startups and spin-outs, where fundraising and product development can create pressure to disclose early.
Practical next steps
- Identify the innovation. Separate the core technical concept from supporting know-how, data and commercial information.
- Map likely disclosure. Consider what a customer or competitor will learn from the product and what will remain hidden.
- Assess patentability and commercial relevance. A technically patentable feature is not automatically worth pursuing.
- Review confidentiality controls. Check contracts, access controls, record-keeping and disclosure practices.
- Align protection with the business plan. Filing territories, timing and expenditure should follow commercial priorities.
- Review the strategy as development continues. The preferred balance may change as the product, team and market evolve.
Frequently asked questions
Is a patent better than a trade secret?
Not inherently. A patent may be stronger where competitors can reverse-engineer the product or independently develop the solution. Trade secret protection may be preferable where valuable information can realistically remain confidential and publication would reduce its value.
Can a startup rely only on an NDA?
An NDA may form part of a confidentiality strategy, but an NDA does not by itself determine whether patent or trade secret protection is commercially appropriate. The business should also control access, identify confidential information and consider the consequences of disclosure.
Should a patent application be filed before speaking to investors?
The answer depends on what you plan to disclose and whether the discussion is confidential. Make the filing decision before the disclosure, not afterwards.
What if part of the technology can be kept secret?
A combined strategy may be suitable. A patent application can address the protectable technical concept while separate know-how is retained and managed confidentially, provided the patent application still contains the disclosure required for the invention.
Choosing the right mix
Start with how the technology creates value and what a competitor can learn from the product. Patents can protect against independent development, but they require disclosure and territorial investment. Trade secrets avoid publication, but only while secrecy can genuinely be maintained.
For many technology businesses, the answer is a combination: patent the features that justify an enforceable right and keep genuinely separate know-how confidential.
General information only. This article does not constitute legal advice. Patent and trade secret decisions depend on the relevant technology, disclosures, territories, agreements and commercial objectives.