A trade secret has to be knowledge that is valuable, secret, and protected at your company. So, in order to be able to say that a particular piece of knowledge is a trade secret, and you want to protect it as such, then the key thing is you have to identify it as a valuable asset and then you have to limit access to the asset somehow. It has to be labeled as such, it has to be marked as such and then you have to be able to demonstrate that it’s protected.
It’s hard to argue that a particular piece of information is a company trade secret, if you haven’t identified specific items you consider to be trade secret or you want to consider EVERYTHING about your company to be secret. Unless you’ve got an extremely stringent employment/contractor/confidentiality policy like a certain company named after a red fruit, you’ll need to be more targeted about your trade secret protection.
Trade Secret List
As a start, we recommend having a written trade secret policy that identifies the list of items that are considered trade secrets at your company, and defines the processes in place for protecting the items on that list. The trade secret policy should also include procedures to update the trade secret list on a regular basis to ensure that the items on the list are still relevant to your company. That is, you will want to add any newly developed trade secrets to the list, as well as remove any items that may no longer be of interest to your company. A quarterly or biannual review of the trade secret list might be a part of your trade secret policy.
The trade secret policy should also include how the items on the trade secret list are being protected. Is the information only accessible on a password-protected server? Is the physical document or product kept in a locked room accessible only by authorized personnel? Do all employees and contractors sign a confidentiality agreement? These procedures should be outlined in the trade secret policy.
Sharing the Trade Secret
Further, your trade secret policy should also include a review mechanism to allow your company trade secrets to be shared with an outside party. For instance, certain pieces of information might be considered core information that will not be shared with any third party, ever. Other trade secrets may be shared with management approval and under a confidentiality agreement.
Just in Case…
Let’s say you end up in a situation where you think that someone has gotten ahold of your valuable trade secret and there is a leak, like what happened with Waymo-Uber. With a written policy in place, you can show the steps you took to prevent that leak from happening — we kept it under lock and key, this person knew that it was a secret, they signed paperwork indicating that they would abide by the company’s confidentiality policy, etc. That’s how you can go after them. If your company enforces a strong policy, you’ll be able to argue that your trade secret could only have gotten out with nefarious intent, and can seek appropriate restitution in the court system.
Real Life Examples
For example, if you’re a software company, you might decide that pre-release versions of code are considered company secrets. Then, once the product is released, maybe the prior releases of the code become obsolete and certain parts of the prior releases (such as code related to features no longer included in your software) can be removed from your trade secret list. That’s one way you can protect your information without going overboard.
With another client who is heavily into materials science, their list is heavily influenced by whether or not a competitor may be able to reverse engineer their products. For example, a competitor might be able to figure out the ingredients that went into a company’s product using spectroscopy and other analytics, it’s still impossible to create a copy of the product without knowing the recipe that pulls it all together. These recipes form the core of the trade secret list of this company. While this company has utility patent filings for the end product and the functionality of the material, the way that their product is created is kept under lock-and-key of a firm trade secret policy and related procedures.
Trade secrets can be confusing, but they are also a valuable part of your overall IP portfolio that need to be protected like everything else. At Patents Integrated, we see the big picture when it comes to intellectual property and know how to help you leverage your trade secrets as part of your overall business. Contact us today to get started.