How to Protect Your Company’s Trade Secrets
Trade secrets are one of the most valuable intellectual property rights of a company. They enable businesses to offer something unique to their consumers and to operate more efficiently than their competitors.
While trade secrets are often very valuable, the law surrounding trade secrets has largely been developed by the courts rather than set out in legislation across the world. As a result, if you’re new to the concept of creating and defending trade secrets, you might not know where to start.
That said, let’s take you through a few of the basics on how to protect your trade secrets:
1). Take Confidentiality Seriously:
It may seem obvious, but information cannot be a trade secret if it has been made public. If you have produced or developed valuable information and wish to protect it as a trade secret, you must ensure that it remains secret.
Practically speaking, this means ensuring that the people who encounter the information are aware of the importance of confidentiality and agree to keep the secret. Often, unless you explicitly point out that an aspect of your organisation’s data or practice is to be kept secret, it will end up being made public. As such, you should always let employees, consultants, and others who will obtain the information know that their access is conditional on agreeing to keep it confidential. Even in jurisdictions in which a verbal agreement is legally sufficient to bind a party, in many cases, a written contract helps to ensure that all parties are aware of their obligations and of the importance of confidentiality.
Unlike most types of intellectual property law, trade secrets generally cannot be registered in order to show ownership. While legal protection is available for trade secrets, this protection generally takes the form of confidentiality agreements and other private contracts. These contracts are often the only way a business can take legal action in the event of a breach.
2). Invest in Adequate Security:
An essential practical part of protecting trade secrets is the use of robust security measures. This includes the protection of physical premises and the protection of digital space.
Data breaches are costly, and are often orchestrated by individuals who have little respect for the law. As a result, concrete steps must be taken to ensure that such individuals do not have access to the relevant information, regardless of whether their use of it would be a violation of the law. Digital security is of key importance, as most confidential information is stored digitally.
The dissemination of confidential information is a serious issue. In many cases, a business is only able to pursue damages against the party or parties responsible for the breach. Because the information is no longer a secret, it generally cannot revert back to being a trade secret and parties who were not involved in the data breach may be able to use the information without consequence.
3). Train Employees:
Like security breaches, accidental dissemination of information often leads to an irreparable loss of secrecy. Even well-intentioned employees and contractors make mistakes.
However, the likelihood of a mistake can be reduced through proper training.
Staff should be provided with training to make sure they are aware of the importance of confidentiality and of practical steps they should be taking to protect the confidentiality of the information they have access to.
This is of particular importance if they will be accessing the information using portable devices like smartphones and laptops. Misplaced tech causes more breaches than any other single issue, so teaching employees about the importance of properly securing their portable devices is of great importance.
Costs associated with security and training should be viewed as a business expense and compared to the value of maintaining the confidentiality of the information.
One of the primary benefits of a trade secret is that the term of protection is not limited to a predetermined period. A trade secret can be protected indefinitely, as long as the secret is kept.
Entrepreneurs who wonder how long a secret can be kept may be encouraged by the fact that the Coca-Cola® formula has been kept a secret for over one hundred years.
About The Writer
This is a guest blog post written by Ryan De Vries. He is an intellectual property lawyer and registered patent agent at Heer Law.
Note: This article has been edited for style and substance.