When it comes to protecting new technologies, it may be difficult to decide between trade secret and patent protection.
Trade secret regime
The reasons for keeping knowledge secret include the time and costs of obtaining the patent, the payment of annual taxes and the limited duration of the patent right.
The risk of a patent application being rejected should be assessed, as in this case there is a public disclosure, and the protection of secrecy is therefore lost.
Advantages of the patent system
The trade secret regime does not constitute a foolproof form of protection, because in many cases it is impossible to prevent knowledge from reaching competitors; or due to the lack of exclusivity, the same technology might be developed independently by others (for example, through the process of reverse engineering.)
Additionally, if a third party obtains by themselves certain information that was being kept confidential and decides to patent it, the resulting patent will be completely valid, and the person will be able to bring legal actions against any other person that exploits such information without the former's consent (even if it were the first person that had developed and obtained said knowledge.)
Previous possession of the invention
While the inventor does not disclose their invention, they may opt – as expressed in the above paragraph – for the protection conferred by the regulations that protect industrial secrecy.
"Previous possession" is when the inventor prefers to exploit their invention as a "manufacturing secret" or "industrial secret" instead of opting for protection through the invention patent regime. In countries such as Germany, France and Spain, it has been admitted that the second inventor could not claim their patent in order to cease the exploitation by the first inventor.
So what does the applicable Argentine legislation stipulate in this regard? It remains silent regarding the so called "right of personal possession", for which reason we consider that said rights are non-existent under our legal regime.
The denial of the "right of previous possession" increasingly encourages inventors to disclose their creations by starting the patent procedure, thus contributing to the technological progress.
Daniel R Zuccherino |
Obligado & CiaParaguay 610, 17th FloorC1057AAH, Buenos Aires, ArgentinaTel: +54 11 4114 1100Fax: +54 11 4311 5675admin@obligado.com.arwww.obligado.com
