Deciding between a patent and a trade secret as a way to secure a sustained advantaged competitive position is not a black and white decision, but one where various shades of grey must be considered. As such a “Preferred Mode Matrix” is created. A team of experienced cross functional personnel, typically found in a patent committee, review the invention or information with respect to a series of questions which have been grouped into decision-making categories.
For each question in the “Preferred Mode Matrix” figure, the committee provides a yes or no answer. The facilitator records the voting results of the Preferred Mode Matrix questions in an excel spreadsheet by entering a “1” in any box where a “yes” or “no” prompt appears.
Upon completion of the “Preferred Mode Matrix” exercise the points are totaled for each of the columns. The committee then reviews the pattern obtained. If there are any points in either blackball column, that option cannot be approved by the committee. When the pattern either strongly favors a patent or trade secret, that pathway is selected on the “Decision Tree Diagram” figure shown below the following Preferred Mode Matrix questions. Note that there are times when both pathways should be followed. In that case when the patent committee meets again they make their final decision based on what the legal team and trade secret team has put forth as their best efforts to obtain protection either from a patent or a trade secret.