Say I patent an innovative method or device for creating ice-cream. I am in the ice-cream business itself, not device manufacturing.
Suddenly, some competitor appears claiming to use a trade secret method for creating ice-cream, stealing my customers. Obviously, I can't prove they use my invention without breaking into their facility.
Now what? Does it even make sense to patent inventions that are not direct-to-market? It feels like I just shot myself in the foot by patenting my idea.
Not all is lost. You made a bargain with the United States government, and that government does offer you some prospect of redress. If you can offer some evidence that your competitor is practicing your patented process or has replicated your patented device, you can bring a law suit. One effect of the law suit is that it affords you the opportunity to discover certain elements of the process your competitor practices. (You may not be allowed to see the results of the discovery yourself, but your attorneys and possibly hired experts will be able to inspect your competitor's operations.) If, in fact, your competitor does practice your patented process or replicate your patented device, then you will be entitled to damages and possibly an injunction preventing further actions that infringe your patent.
You and your competitor illustrate the advantages and disadvantages of the choice between patents and trade secrets - particularly the advantages of your patent bargain. His only protection is secrecy, while you have the full force of the federal government on your side. He may have discovered the process or created the device before you did, but his decision to keep it secret means that you, even though you came to the idea later, own the public rights and he has to pay you to continue to implement that idea in his business.
