Patents or Trade Secrets? When to Patent in Deep Tech Innovation

​
May 11, 2026

Why IP Strategy Matters for Deep Tech Companies

Protecting your business and products from being copied or otherwise exploited is always important, particularly for companies developing deep tech technologies. Advanced hardware, electronics, and the processes used to design, manufacture, or operate them, require a particular approach. Long development cycles and high upfront investment often delay commercial returns, making it essential to adopt an IP strategy that reflects how value is created, where technical advantage truly lies, and how competitors could realistically gain access to it.

Properly protected IP is widely recognised as a way of enhancing company value. This can be achieved by preventing others from using your technology without permission, but equally by creating defensible barriers that deter entry or imitation. A recurring strategic question for deep tech companies is whether protection should take the form of patents, trade secrets, or, more often, a carefully structured combination of the two.

Reverse Engineering and the Risk of Imitation

For a competitor to copy a technology, the relevant technical details must be known or discoverable. Physical hardware, such as circuit designs, can sometimes be reverse-engineered, although complex systems may require sophisticated techniques, including X‑ray imaging, electron microscopy, or focused ion beam analysis. While these approaches can be costly and time‑consuming, they may still be commercially viable where the upside is large enough.

Importantly, competitive advantage in deep tech does not arise solely from products. Many businesses also rely heavily on processes: manufacturing methods, calibration routines, materials processing steps, test methodologies, control algorithms, or system‑level integration techniques. These processes often deliver critical improvements in performance, yield, reliability, or cost, yet may not be directly observable from the final product.

Detectability and Enforceability in Practice

In some business models, disclosure is unavoidable. Semiconductor IP, for example, may be licensed in the form of RTL code such as Verilog or VHDL, making the underlying design visible to customers and their engineers. In these scenarios, trade secrets alone can be fragile. Patent protection may provide clearer and more enforceable rights, particularly where multiple organisations need access to the same core technology.

Detectability plays a central role in the patent versus trade secret decision. If a competitor cannot readily determine how a technology works, it may also be difficult for the rights holder to detect or prove infringement. Patents are often best suited to technologies that are likely to be discovered through product inspection, disclosed to third parties, or independently developed. They provide a defined scope of protection and a structured enforcement framework. When drafted with detectability in mind, patents can be aligned with externally observable behaviour or measurable system outputs, improving their practical enforceability even for complex technologies.

Using Trade Secrets to Protect Internal Know‑How

Trade secrets, by contrast, are often well suited to internally used processes and know‑how that never need to be disclosed outside the organisation. This includes manufacturing techniques, tuning parameters, workflow optimisations, and other operational knowledge. Effective trade secret protection depends on technical, contractual, and organisational controls, including restricted access, confidentiality obligations, and careful documentation. In the EU, this requires compliance with the Trade Secrets Directive (EU Directive 2016/94).

Employee mobility presents additional challenges. Process‑based know‑how is often harder to protect once key personnel move to competitors, particularly where similar results can be achieved through parallel development. In such cases, patents covering core technical concepts, even where specific implementation details remain confidential, can provide a valuable backstop.

Combining Patents and Trade Secrets for Stronger Protection

In practice, the strongest deep tech IP strategies deliberately combine patents and trade secrets. Patents can secure protection for externally visible innovations and strategically important technical ideas, while trade secrets safeguard sensitive processes and execution know‑how that deliver practical advantage. Determining the right balance is highly technology‑specific and closely tied to commercial objectives.

‍

Early advice from experienced patent attorneys is therefore critical. At EIP, we work with companies developing complex deep tech systems to build IP strategies that align legal protection with technical reality and business goals. Through our Ampliphy offering, clients gain access to patent attorneys specialising in electronics, semiconductors, and advanced processes, ensuring informed decisions at the intersection of innovation, IP, and commercial strategy. To explore how a combined patent and trade secret strategy could work for your technology, contact Andrew Thompson or Filip Jörgensen for a discussion.

‍

‍

The Latest Thought Leadership pieces in the Content Hub

No items found.
Stay in the Know

The Patent Strategist

Get expert insights and the top patent stories delivered straight to your inbox.

Heading
This is some text inside of a div block.
This is some text inside of a div block.

Latest Insights

Showing 0 of 100
Ask the Experts: Can I get a patent for my invention?
17 August 2021
In the first article in this series, we introduced patent attorneys, and suggested that ‘How do I get a patent’ may not be the first question to ask a patent attorney.
#
Patenting
​
Ask the Experts: Can a patent attorney help your business?
10 August 2021
If you have watched the BBC programme ‘Dragons Den', you'll almost certainly have heard entrepreneurs asked about intellectual property rights, such as patents, design rights, trademarks and so on.
#
Patenting
​
Should I get my Patent Application to Grant as Fast as Possible?
28 July 2021
Why do patents take so long to grant?Progressing a patent family through to grant can take a notoriously long amount of time, particularly when an applicant is looking to protect their invention in a...
#
Patenting
​
How could internal combustion engines help drive decarbonisation?
22 July 2021
Last week, the UK Government announced that sales of new petrol and diesel heavy goods vehicles (HGVs) will be banned by 2040. The UK's Road Haulage Association supports the aim, but in a press...
#
Patenting
​
Digital event: Reality check for patenting computer-implemented simulations at the EPO
21 May 2021
Join us for a digital event on the 2 June.In its decision G1/19 (Simulations), the Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) addresses the patentability of...
#
Patenting
​
Digital event: Patent enablement in the UK – the judgments in the Regeneron and Illumina cases
09 April 2021
Join us for a digital event on the 21 April where we will be covering what you need to know about the requirement of patent enablement in the UK – the Supreme Court decision in Regeneron and the High...
#
Patenting
​
Digital event: What you need to know about the new EPO Guidelines for Examination
23 March 2021
Join us for a digital event on Tuesday 30th March covering what you need to know about the new EPO Guidelines and current EPO practice.This webinar hosted by Gareth Probert and Darren Smyth will give...
#
Patenting
​
International Women’s Day 2021: Q&A with Justyna Strzeszynska, founder & CEO of Joii
08 March 2021
This year, the International Women’s Day theme is ‘choose to challenge’ with a focus on challenging change to create a gender equal world.The day marks a call to action for accelerating women’s...
#
Patenting
​
International Women’s Day 2021: Q&A with Kate Bache, co-founder & managing director of Health and Her
08 March 2021
This year, the International Women’s Day theme is ‘choose to challenge’ with a focus on challenging change to create a gender equal world.The day marks a call to action for accelerating women’s...
#
Patenting
​
National Careers Week: How I started my career in IP by Tom Swift
05 March 2021
In support of National Careers Week, trainee patent attorney, Tom Swift discusses his journey into IP and gives advice to others looking to start a career in IP.
#
Patenting
​
Managing Designs and Trademarks after Brexit
30 December 2020
Following the end of Brexit here at EIP we can advise on the protection of your designs and trademarks.We can represent your design applications at the UK IPO, EU IPO and USPTO through our offices in...
#
Patenting
​
Brexit – what happens to your EU rights after the Transition Period?
25 November 2020
As we approach the end of the transition period, which expires on 31 December 2020, it is timely to provide an update and reminder about the impact of Brexit on EU Trademarks and Registered Community...
#
Patenting
​
BioWednesday Webinar Report: Enabling Access to Medical Technologies - Compulsory Licensing, TRIPS and FRAND
12 June 2020
On 20th May 2020 EIP Life partners Andy Sharples and Monika Rai joined One Nucleus’ BioWednesday webinar.EIP have created an event report that covers the webinar in more detail.
#
Patenting
​
IP pitfalls to avoid
31 March 2020
Partner Neil Condon of our Cardiff office explains his top IP pitfalls to avoid in this online blog article for Wales Business Insider.
#
Litigation
​
Analysis of Intel’s cellular patent portfolio
20 September 2019
Intel has built a cellular portfolio of 5G patent assets at some pace. The industry should take note, says James Seymour in this article in the September 2019 issue of Intellectual Property Magazine.
#
Patenting
​