Intellectual property is an important part of every specialty food brand, and with it comes decisions makers must make which can greatly impact their product. David Postolski, partner at Gearhart Law LLC will talk about some of the important differences between two forms of intellectual property protection and give strategic advice on which may be best for your business during the SFA Maker Prep webinar, “Patent or Trade Secret? Understanding Intellectual Property Protections.” It will take place this Thursday, Sept. 8 at 1 p.m. EST. Register now.
SFA News Daily spoke with Postolski about what he plans to cover in the session.
Please briefly summarize the two forms of intellectual property protection.
A patent is one type of intellectual property: a federal governmental right granted for an invention that allows you a monopoly to exclude others from infringing your patented invention. It is a public technical document for a product or a process that provides, in general, a new way of doing something, an improvement on an existing invention, or a new use for something. As such, it is something based on science or design.
A trade secret is also a form of intellectual property: it is the opposite of a patent, as it is never public. It is commercially valuable to a company because it is a secret. The trade secret is usually only known to a limited group of persons, who are under a confidentiality agreement to keep what they know a secret. There is no infringement of a trade secret, there is only the misappropriation or unauthorized acquisition, use, or disclosure of a trade secret by others. This trade secret reality often limits a company as to what they can do to a competitor.
Have you noticed any intellectual property issues that are more likely to affect specialty food brands?
Specialty food brands usually struggle as to whether they should seek patent or trade secret protection given they are direct opposites. Trying to achieve both is the common strategy for food brands that truly have something patentable or based on science or design (such as packaging or unique product configuration!) Specialty food brands must also deal with another type of intellectual property, a trademark. Whether they seek a patent or keep something a trade secret, their trademark or brand is crucial to protect at no cost.
Do you notice specialty food brands make any common mistakes when seeking these protections?
The biggest mistake is not understating the differences between a trade secret and a patent. They each have their benefits and disadvantages and companies often make the decision on one or the other without understanding the consequences of that decision. Another common mistake is how much a company is sharing publicly. Publicly sharing what you want to protect as a patent or a trade secret can statutorily block you from seeking either protection!
What is the biggest takeaway you would like attendees to gain from the webinar?
The biggest takeaway is that there is not a one size fits all solution for specialty food brands in the food industry. Every company may have business, legal, economic, and cultural factors as to why they should choose one or more forms of Intellectual property protection. The presentation will provide education and empowerment on at least two of these protections (trade secret and patent) so that specialty food brands can make the best decision for their product, company, and journey.
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