Trade Secret

Trade Secret Protection

You have devoted countless hours into building up your business -- its relationships, staff, processes, and products.  Let us help you find a way to maintain the confidential status of this information, including your business's goodwill, and its other intangible assets. 

 

 

What is protectable as a trade secret?

A trade secret, as defined by the Uniform Trade Secrets Act, is any information, such as a formula, pattern, compilation, program, device, method, or technique that: (1) derives independent economic value from not being generally known to, and not being readily ascertainble by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of reasonable efforts under the circumstances to maintain its secrecy

Trade secret enforcement has traditionally been the domain of state law; however, recent legislation has additionally provided a venue for the federal enforcement of misappropriation in the Defend Trade Secrets Act of 2016 (DTSA).  

Timing consideration.

Best practices to maintain the "reasonable efforts" requirement of protectable trade secrets should be assessed and implemented at the onset of the founding of any new company or new project.  Once implemented, trade secret protection may serve as a "catch all" layer for those items that may not fall squarely with the protection of patents, trademarks, or copyrights.

Our process.

The overall goal of a trade secret assessment and implementation program is to preserve viable causes of action and protection for the future, for any potentially valuable information or materials which may stem from your organization or project. Depending on what stage your organization in, we can help you:

  1. Prepare or review third party agreements such as NDA and Confidentiality Agreements for meetings or disclosures with developers, investors, or potential business partners, in order to both safeguard trade secret protection, as well as preserve the ability to go after patent protection (so that the disclosure cannot be said to have been a "public" one).

    For third party developers or contractors, it is additionally recommended to execute a Work for Hire Agreement assigning any intellectual property rights to the works being commissioned, including trade secret rights.

  2. Prepare or review internal employment agreements imposing duties of non-disclosure, as well as ensure compliance of the same to state and federal rules (such as providing notice of the DTSA whistleblower immunity provisions). 

  3. Evaluate or implement protections in place to maintain the confidentiality of your organization's trade secrets. Develop response plans, if appropriate, for suspected misappropriation and for receiving a seizure order.