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Trade secrets and patented secrets often work together

Trade secrets and patents can reinforce each other but are certainly not the same, as a recent court decision once again reminds us. Both can be part of a coordinated strategy to protect a company’s intellectual property.


Lettuce becomes shrouded in secrecy

The case involved a Maine-based company, Global Protein Products (GPP). It provides special coatings to prolong the shelf-life of produce such as lettuce, and a way of applying them.

A scientist who once worked for GPP started his own a California company, West Coast Ag (“WCA”).

GPP sued him and WCA for misappropriating trade secrets, including a patented and secret coating formula along with a method of applying them to food.

Pointing to openness to argue secrecy not an issue

The court proceedings were complex, stopping and starting over the course of more than a decade. Along the way, the court and both companies put a permanent stop to WCA using or revealing these trade secrets.

Eventually, WCA filed to have the permanent injunction lifted because GPP had publicly revealed the secret formula during the proceedings. With the formula already public, they said, GPP no longer had a trade secret to protect and WCA was free to do business using it.

Court says information is still secret despite disclosures

Ultimately, California courts sided with GPP, finding that they still had trade secrets it had a right to protect. While the company revealed the ingredients of the patented coating, some details of the formula and the process were undisclosed. Because the trade secrets were still secret, among other reasons, the permanent injunction held.

Trade secrets do not always need patent protection

Although narrowly aimed at this case alone, this California decision can be a helpful reminder to Colorado companies with intellectual property to protect. Trade secrets and patented information can be separate parts of one coordinated plan.

In a more famous illustration, Coca Cola last patented the formula for Coke’s syrup in 1893, but that patent expired more than 100 years ago. The formula has since changed but the company never patented it again, in part because patents expire. Trade secrets live if they remain secret.

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