Most protections afforded to intellectual property (IP) are available only after the property is in the public realm. For instance, trademarks must be used in commerce to identify products and services offered to consumers. Creators of original works generally must publish or register those works before they may enjoy any meaningful copyright protections. More significantly, prospective patent holders must not only submit their inventions to the scrutiny of the patent process, ultimately resulting in a publicly accessible record of every last detail concerning that invention's construction and use, they also must be willing to see their exclusive rights in that invention vanish upon the expiration of the patent. While patent holders do obtain a large measure of predicable certainty regarding the remedies they have available to protect their inventions, in many cases, the high cost (both substantive and procedural) of obtaining those protections may represent a poor investment, depending on the type of IP to be protected. In those cases, owners might find a more appropriate IP regime under trade secrets law.
In effect, a trade secret operates as a kind perpetual patent; the owner potentially can use the secret for his or her own commercial benefit forever. Moreover, almost anything can be a trade secret, while the availability of trademark, copyright or patent protection may be limited based on the nature of the IP at issue. However, "forever," with respect to trade secrets, may be roughly translated as: "for as long as you can keep it." Unlike with patents, where a fairly complex, federal statutory regime usually provides most of the protection afforded to patent holders, those who intend to protect their inventions as trade secrets must be willing to do more of the heavy lifting themselves, using, in the United States, two primary tools: state law and contracts.
Most states have enacted trade secrets legislation - usually modeled on the Uniform Trade Secrets Act - under which an owner of a trade secret may obtain injunctive relief to prevent another from misappropriating that secret by acquiring or using it without the owner's consent. The Trade Secrets Act also gives the owner the opportunity to seek civil damages arising out of such misappropriation, as well as attorney's fees. However, in many cases, an owner's resort to such statutory protection will represent a failure of the owner's front-line trade secrets defenses: his contracts and internal policies.
The key to effective trade secrets protection lies in addressing those secrets with a holistic set of internal policies regarding their use and with a well-crafted set of contractual agreements designed to restrict the ability of a third party to misappropriate them. Internally, access to the existence or details of a trade secret should be clearly limited by internal policies to only those employees who need to have such access, and those policies themselves must be crafted in such a way as not to attract unnecessary (or, sometimes, any) attention to the secrets they should be designed to protect. Moreover, a trade secrets owner must always be mindful of the extent to which any vendors or contractors or even customers are allowed to access those secrets, and it should include enforceable provisions in contracts with such parties to protect its interests. Finally, a trade secrets owner needs to include a comprehensive set of protections in its employment agreements, which should provide, within the bounds of what is permitted in the owner's jurisdiction, that work completed by employees in the course of their employment constitutes property of the employer and that those employees will remain bound to the terms of specified non-disclosure agreements and non-compete covenants during the course of, and for a period of time following, the term of their employment. What is and is not legally permissible with respect to such clauses usually varies from state to state.
It is worth noting that most of these same protections are good ideas for patent holders as much as they are for trade secrets owners. With trade secrets, though, while the owner must devote more vigilance to the implementation and enforcement of such protections, it need not necessarily undertake the considerable initial expense to obtain the protection in the first place.
Whether it makes sense to construct a comprehensive trade secrets protection regime for your IP will depend on your willingness to commit to full implementation and enforcement, and that willingness may itself depend on the type of property at issue. If that property likely will become obsolete within the patent term (generally, 20 years) just by virtue of the market in which it competes, then it may make more sense to seek protection from other sources. If that is not the case, though, trade secrets protection could be the most appropriate means of protecting your IP.