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> Trade secrets were invented as a riskier way to extend your monopoly by giving up government protection. You're definitely mistaken on that point. Trade sec

> Trade secrets were invented as a riskier way to extend your monopoly by giving up government protection. You're definitely mistaken on that point. Trade secrets enjoy protection in the law, both in the US and worldwide: https://www.uspto.gov/ip-policy/trade-secret-policy https://www.uspto.gov/ip-policy/trade-secret-policy > If the government is going to give trade secrets the same protection as patents (or even more, because patent infringement doesn't come with jail time), companies have zero motivation to publish. Despite both forms of IP enjoying legal protections, there are many reasons to prefer trade secrets over patents or vice versa. It's much much easier to accidentally lose trade secret protection by inadvertantly divulging those secrets, so in that sense patents are more "durable". You also can't use trade secret protections to prevent reverse engineering, so any invention that's easily observable and reversible is not suitable for trade secret protection. Trade secrets also can't be used to protect from independent invention, so if someone else discovers your trick, you have no recourse. Conversely, trade secrets apply to things that cannot traditionally be patented. The classic example is, of course, the recipe for coke, as recipes in general are not patentable subject matter Trade secrets also have no expiration date, hence again, Coke. Obviously this is a deep well and I've only just barely scratched the surface.

gamblor956 6y ago
Trade secrets are subject to certain protections, such as protections against IP theft. It's perfectly fine for a competitor to independently reverse-engineer a trade secret from scratch.
- CarelessExpert 6y ago
  Yup, I mentioned that specifically about half way down my comment. Tbf, I edited it a lot for a while there and added that later so you may have seen an earlier version. :)
klipt 6y ago
Pretty sure anyone could hire a few experts to duplicate the flavor of Coke exactly. Their moat is branding, partnerships and a huge distribution network, not some "secret recipe".
- ipsum2 6y ago
  I think Coke's moat (in addition to branding) is their use of coca leaves, basically impossible for any other company to source legally (at least in the US: https://en.wikipedia.org/wiki/Coca-Cola#Coca_leaf https://en.wikipedia.org/wiki/Coca-Cola#Coca_leaf
  - deleted 6y ago
    [deleted]
- tomc1985 6y ago
  It's been accidentally disclosed a few times over the years. IIRC at some point someone offered to sell the recipe to Pepsi, and they refused on account of the legal mess it would put them in and perhaps a sense of honor
  - lostcolony 6y ago
    And the fact that "Pepsi Coke" is a marketing non-starter; they want people to buy Pepsi, and the people who won't buy Pepsi, but will buy Coke...will just buy Coke, not Pepsi Coke.
adatavizguy 6y ago
It is interesting that recipes are not art but rather fact. The same with fashion. I think that SpaceX has trade secrets rather than patents because there is nothing stopping China using the information in a patent whereas a trade secret is obfuscated.
- AstralStorm 6y ago
  If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication.
  - CarelessExpert 6y ago
    > If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication. I've certainly read my fair share of patents, and bluntly, I don't understand how you can make that claim. (har har) Yes, patents are written with a POSITA (person having ordinary skill in the art) in mind, meaning you need familiarity with the area to understand them. A large part of the patent prosecution process is ensuring that the patent meets that standard. So I don't immediately buy that they're "very hard to replicate" for such an individual. Heck, that would work against any individual patenting an invention, as if the patent cannot be understood by a POSITA, then it can't be easily enforced in a court of law. The entire Markman hearing process would fall apart if the judge couldn't form a coherent understanding of the claims. Do you have examples where you believe this to be the case?
- amelius 6y ago
  But what happens if someone else independently invents the same things and protects them in a patent? Does SpaceX lose their technology?
  - CarelessExpert 6y ago
    So, given current US patent law, if SpaceX has some system/method/etc that is patentable material, but that they've chosen to retain as a trade secret, and someone else comes along and rediscovers the thing and patents it, then absolutely, SpaceX may then be in violation of that patent. That's because, as of 2011, the US (and basically the rest of the world) works on a first-to-file basis: https://en.wikipedia.org/wiki/First_to_file_and_first_to_invent#USA_change_to_first-inventor-to-file_(FITF) https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv... Meaning: "In a first-to-file system, the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention." Obviously this is not without controversy! The upside is it drastically simplifies patent filing, litigation, etc, since there can be no debate about who was the first to file a patent for an invention. But, as you point out, there are significant downsides. I would claim FITF ultimately encourages patenting and thus public disclosure of inventions, which is overall better for the world than one dominated by protections with trade secrets. But I can't claim to have put a lot of thought into that position...
hannasanarion 6y ago
Trade Secrets were not protected under US law until 1996. All of the upsides of trade secrets you list are benefits that they have, despite a complete lack of government enforcement, as it should be. Coke protected its formula for over a century with NDAs and effective security measures. They went through enormous effort and expense to protect the secret, because the law until 1996 said that they were responsible for their own secrets. Some of Google's algorithms get leaked and they go whining to the government demanding that people be thrown in prison for espionage. It's a bastardization of the purpose of intellectual property. There is nothing wrong with trade secrets. There is something very wrong with government underwriting the risk involved in building a business reliant on trade secrets. Patents exist as an incentive to publish: you show us your work, we let you have a total monopoly on it for 20 years. Trade secret protections break that deal. If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret", then there is no reason to publish anything ever, the state of the art stagnates, and the technology industry becomes dominated by uncontestable monopolies with the power to throw you in prison if you look over their shoulders.
- CarelessExpert 6y ago
  Well, lucky for you I'm not arguing on the merits of the law, only that it exists (and has since at least 1979 when the first federal law in this area was passed, though state protections pre-date that), and that the original commenter was mistaken in thinking it didn't. As for the rest, eh, I genuinely don't care enough to argue. My original purpose was to correct a misunderstanding and provide some hopefully helpful additional context, not to argue for or against the ethical righteousness of various IP protection regimes.
- 6gvONxR4sf7o 6y ago
  > If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret"... You're misunderstanding it. If you steal a secret's blueprints, the government will come after you. If you reinvent the secret's methods yourself, you're free to do whatever you want.
crazygringo 6y ago
Wow, I just want to say thanks for that info. I thought I had a decent layman's knowledge of intellectual property across copyright, patents and trademarks, and had no idea trade secrets had any kind of legal protection whatsoever. Very important knowledge to be aware of. Thanks for spreading the word. Particularly interesting: https://en.wikipedia.org/wiki/Trade_secret#Misappropriation https://en.wikipedia.org/wiki/Trade_secret#Misappropriation

gamblor956 6y ago

Trade secrets are subject to certain protections, such as protections against IP theft. It's perfectly fine for a competitor to independently reverse-engineer a trade secret from scratch.

CarelessExpert 6y ago
Yup, I mentioned that specifically about half way down my comment. Tbf, I edited it a lot for a while there and added that later so you may have seen an earlier version. :)

klipt 6y ago

Pretty sure anyone could hire a few experts to duplicate the flavor of Coke exactly. Their moat is branding, partnerships and a huge distribution network, not some "secret recipe".

ipsum2 6y ago
I think Coke's moat (in addition to branding) is their use of coca leaves, basically impossible for any other company to source legally (at least in the US: https://en.wikipedia.org/wiki/Coca-Cola#Coca_leaf https://en.wikipedia.org/wiki/Coca-Cola#Coca_leaf
- deleted 6y ago
  [deleted]
tomc1985 6y ago
It's been accidentally disclosed a few times over the years. IIRC at some point someone offered to sell the recipe to Pepsi, and they refused on account of the legal mess it would put them in and perhaps a sense of honor
- lostcolony 6y ago
  And the fact that "Pepsi Coke" is a marketing non-starter; they want people to buy Pepsi, and the people who won't buy Pepsi, but will buy Coke...will just buy Coke, not Pepsi Coke.

adatavizguy 6y ago

It is interesting that recipes are not art but rather fact. The same with fashion. I think that SpaceX has trade secrets rather than patents because there is nothing stopping China using the information in a patent whereas a trade secret is obfuscated.

AstralStorm 6y ago
If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication.
- CarelessExpert 6y ago
  > If you have read any sufficiently advanced patent, you'll easily see they're very hard to replicate without insider knowledge, bastardizing the principle behind protection due to publication. I've certainly read my fair share of patents, and bluntly, I don't understand how you can make that claim. (har har) Yes, patents are written with a POSITA (person having ordinary skill in the art) in mind, meaning you need familiarity with the area to understand them. A large part of the patent prosecution process is ensuring that the patent meets that standard. So I don't immediately buy that they're "very hard to replicate" for such an individual. Heck, that would work against any individual patenting an invention, as if the patent cannot be understood by a POSITA, then it can't be easily enforced in a court of law. The entire Markman hearing process would fall apart if the judge couldn't form a coherent understanding of the claims. Do you have examples where you believe this to be the case?
amelius 6y ago
But what happens if someone else independently invents the same things and protects them in a patent? Does SpaceX lose their technology?
- CarelessExpert 6y ago
  So, given current US patent law, if SpaceX has some system/method/etc that is patentable material, but that they've chosen to retain as a trade secret, and someone else comes along and rediscovers the thing and patents it, then absolutely, SpaceX may then be in violation of that patent. That's because, as of 2011, the US (and basically the rest of the world) works on a first-to-file basis: https://en.wikipedia.org/wiki/First_to_file_and_first_to_invent#USA_change_to_first-inventor-to-file_(FITF) https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv... Meaning: "In a first-to-file system, the right to the grant of a patent for a given invention lies with the first person to file a patent application for protection of that invention, regardless of the date of actual invention." Obviously this is not without controversy! The upside is it drastically simplifies patent filing, litigation, etc, since there can be no debate about who was the first to file a patent for an invention. But, as you point out, there are significant downsides. I would claim FITF ultimately encourages patenting and thus public disclosure of inventions, which is overall better for the world than one dominated by protections with trade secrets. But I can't claim to have put a lot of thought into that position...

hannasanarion 6y ago

Trade Secrets were not protected under US law until 1996. All of the upsides of trade secrets you list are benefits that they have, despite a complete lack of government enforcement, as it should be. Coke protected its formula for over a century with NDAs and effective security measures. They went through enormous effort and expense to protect the secret, because the law until 1996 said that they were responsible for their own secrets. Some of Google's algorithms get leaked and they go whining to the government demanding that people be thrown in prison for espionage. It's a bastardization of the purpose of intellectual property. There is nothing wrong with trade secrets. There is something very wrong with government underwriting the risk involved in building a business reliant on trade secrets. Patents exist as an incentive to publish: you show us your work, we let you have a total monopoly on it for 20 years. Trade secret protections break that deal. If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret", then there is no reason to publish anything ever, the state of the art stagnates, and the technology industry becomes dominated by uncontestable monopolies with the power to throw you in prison if you look over their shoulders.

CarelessExpert 6y ago
Well, lucky for you I'm not arguing on the merits of the law, only that it exists (and has since at least 1979 when the first federal law in this area was passed, though state protections pre-date that), and that the original commenter was mistaken in thinking it didn't. As for the rest, eh, I genuinely don't care enough to argue. My original purpose was to correct a misunderstanding and provide some hopefully helpful additional context, not to argue for or against the ethical righteousness of various IP protection regimes.
6gvONxR4sf7o 6y ago
> If the government will now give you a monopoly for the rest of eternity on any invention that you label "secret"... You're misunderstanding it. If you steal a secret's blueprints, the government will come after you. If you reinvent the secret's methods yourself, you're free to do whatever you want.

crazygringo 6y ago

Wow, I just want to say thanks for that info. I thought I had a decent layman's knowledge of intellectual property across copyright, patents and trademarks, and had no idea trade secrets had any kind of legal protection whatsoever. Very important knowledge to be aware of. Thanks for spreading the word. Particularly interesting: https://en.wikipedia.org/wiki/Trade_secret#Misappropriation https://en.wikipedia.org/wiki/Trade_secret#Misappropriation