Is protecting your IP more effective via patent or trade secret?

Companies and individuals seeking to protect their intellectual property (IP) are often times 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 section 45 of the Republic of South Africa’s Patents Act, the effect of a patent is to grant to the patentee in the republic, for the duration of the patent, the right to exclude other persons from making, using, exercising, disposing of or offering to dispose of, or importing the invention, so that the patentee will have and enjoy the whole profit and advantage accruing from the invention.

Patent period

In South Africa, as in a majority of other jurisdictions, a patent is granted for a period of 20 years, from the date of filing the patent application.

The first factor to take into account, therefore, lies in the above, namely that a granted patent is enforceable against any third party in the country. On the contrary, keeping a trade secret is done on a contractual basis.