Do you have a Big Secret? A lot of successful businesses do. Think of the major cola companies. Or the baked beans commercial. But trade secret protection is not limited to recipes.
Trade secrets can be extremely valuable – or completely worthless if not properly protected. Non-disclosure agreements are just the beginning. Trade secret material needs to be properly secured and marked as confidential and other measures are often necessary.
While tade secret protection varies at least to some extent depending on which state you’re in, trade secret protection may be available for information, know-how, equipment, drawings, materials, etc. that are maintained as confidential. Protection may not be available if the information is or becomes public knowledge. Therefore, trade secret protection is directly opposite of patent protection. That is, if you apply for a patent, your invention is disclosed to the public by the U.S. Patent Office before it will issue as a patent.
But there are some advantages to trade secret protection. For example, there is no application or registration process. In addition, your trade secret is protected indefinitely (unless it becomes public knowledge). Of course, not everything can be protected by trade secret law. For example, if your product can be reverse engineered, then it will not remain a secret for long after you begin selling the product to others.
Some common pitfalls you will want to avoid include not taking reasonable measures to protect the confidential nature of your trade secret materials, such as:
- Failing to use non-disclosure agreements (NDAs).
- Failing to properly mark trade secrets as confidential.
- Failing to limit access to only those reasonably requiring access to the trade secret.
What can you do to protect your trade secret? First, keep it secret. Then hire a patent attorney to help you identify what might be best protected by trade secrets, and what is better protected by patents. A patent attorney can also help you establish a trade secret program to protect your own trade secrets, while taking measures to avoid infringing on someone else’s trade secrets.
