Trade Secrets, Confidentiality & IP (Patents & Copyrights)

Suppose you conceptualized a theme of a Dinosaur Combat with the surrounding nature similar to of that era, & further disclose it to someone else, make this individual sign with you an NDA, for any mutual future production work. Later, this individual, without disclosing you, makes a short or long series or flick, about a Dinosaur combat with similar theme containing elements (elements that define an expression of an idea) of the same era. Is it breach of confidentiality?  Further, are Trade Secrets dissimilar or similar to that of protection acquired by Patents? 

Both Patent & Trade Secrets(confidentiality or a secret, that has an independent economic competitive value), exists in mutual exclusive. Once the Patent is filed, post publishing, it’s disclosed in the public domain. And after its expiry (20 years (If granted)), it’s available in public domain. The terms alike compulsory licenses, pre-post grant oppositions, revocation etc. already been opined in the previous blogs. Whereas Trade Secrets aren’t available in public domain & tough (sometimes an expensive affair) to maintain its secrecy. Eg. Coca-Cola secret formula (I don’t drink carbonated/soft drinks). But can both Patent & Trade Secrets cross paths? Yes, (eg. excipients in Pharma protected by Trade Secrets). But once Trade Secrets are out in open & if Reverse Engineered independently, then not likely to be Protected (except in certain cases of employer-employee agreement, alike confidentiality, subject to the terms of which shouldn’t be void), as Trade Secrets infringement can only be invoked against with whom the confidentiality has been signed, & not against the public at large. Whereas, in Patents, albeit rights are restricted for 20 years (if granted) to whatever is disclosed in the Claims, protects IP more than Trade Secrets, even against public at large. Further, not all Trade Secrets can be protected as IP (eg. reverse engineering or derived independently). Albeit if a longer protection is needed, then Trade Secrets make sense subject to if it can be protected from public disclosure.

 

Whereas, for copyrights, to assess the infringement, the idea-expression dichotomy (ideas expressed in words or actions or in writing & not mere abstract) should pass the litmus test of substantial similarity index to prove being infringed. Mere presence of similar generic common anticipated theme may not be an infringement. Scene by Scene vs Scène à faire (Scene to be Made), Even if confidentiality agreement exists. 🙂

© Pranav Chaturvedi