Companies and individuals seeking to protect their intellectual property are often faced with a decision between patenting their invention and keeping it a trade secret.
While not always a simple decision to make, consideration should be given to certain factors when assessing a potential route of protection.
According to the Patents Act, a patent shall allow the patentee (for the duration of the patent) to exclude other persons from making, using, exercising, disposing of, or offering to dispose of, or importing the invention, so that the patentee shall have and enjoy the whole profit and advantage accruing from the invention. In South Africa, as in many other jurisdictions, a patent is granted for a period of 20 years, from the date of filing the patent application.
“ONCE USED, ALBEIT IN SECRET, THE POSSIBILITY OF LATER OBTAINING A PATENT FOR THE INVENTION WOULD BE DESTROYED AS THE NOVELTY REQUIREMENT WOULD NO LONGER BE MET.”
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trade secrets, NDAs, South Africa Patents Act
