How Long can a Trade Secret Last?
The duration of a trade secret can be anywhere from a minute to a lifetime. That’s right. The lifespan or duration of a trade secret depends completely upon your ability to keep the trade secreted information secret. So, you might be asking yourself (or me if we were sitting together), why wouldn’t I simply keep my trade secreted information secret forever? Well, in an ideal world, you would. But, we do not live in an ideal world. There are many things that could occur (many of which are out of your control) that could destroy your trade secret. In fact, there are two very common ways that trade secret protection is often lost. First, if your competitors can reverse engineer your product and discover your secret. In other words, if your competitors can get access to your product by lawful means, reverse engineer it (tear it apart), and figure out how it works, your trade secret will be forever lost. In fact, there are companies all over the world that provide the singular service of tearing apart competitive products to figure out how they work. Okay, the second way that trade secrets are typically lost is by people saying things they shouldn’t be saying. Yes, it can be that simple. And, many of these trade secret leakers have the best of intentions. It could be marketing professionals who are trying to develop and spread your brand as great innovators. It could be your great innovators who are so excited about their project that they spread it all over social media. It could be sale professionals who are trying to get a sales contract closed by talking about “what’s coming soon.” Simply, many companies to not have a strong secret keeping infrastructure. In either case, regardless of how your trade secret was exposed to the world, by reverse engineering, loose lips, or any other reason, once it’s made public, your trade secret is lost forever. Now, it’s worth comparing the potentially unlimited duration of trade secrets with the potentially unlimited duration of trademarks. Trademarks can also last forever, but…for the exact opposite reason. Where the unlimited duration of trade secrets is all about secrecy…never letting everyone know, the unlimited duration of trademarks is all about publicity…always letting everyone know. A trade secret must be continuously used in commerce to live forever. Finally, it’s also worth comparing the potentially unlimited duration of trade secrets with the limited duration of patents and copyrights. Patents typically have a life of 20 years from the date of filing of the initial patent application, and copyrights (in the US) typically have a life of 75 years plus the life of the author(s).