Sometimes people think that trade secrets are a second class form of intellectual property. They reason that important inventions are for patents while lesser inventions may be protected as trade secrets. In our view, the opposite is true. When an invention is a good candidate for trade secret protection, then protecting it as a trade secret is the first line of defense.
The key is knowing what’s a good trade secret. To answer that question we need to think for a minute about what a trade secret actually is.
A trade secret is information that derives economic value from being kept secret. To get the protection of trade secret law, the law requires the trade secret owner to use reasonable measures to keep the information secret.
A good trade secret is simply a valuable bit of information that you keep secret. If it’s likely to walk out the door, it’s not a good trade secret.
For example, it’s information that doesn’t need to be broadly known within the company, so it’s less likely than other information to walk out the door with an employee. It’s not typically shared with individuals outside the company, and if it is, it’s identified as a secret and protected by contract. It’s typically information that isn’t likely to be published in a patent application or a scientific publication.
A few tips for protecting your trade secrets:
- Control access to your facility, ensuring that non authorized individuals can’t wander through the building
- Pay careful attention to how well you protect your electronic information
- Don’t share trade secret information with anyone who doesn’t have a specific need to know it
- Be diligent about putting confidentiality agreements in place when you want to share trade secrets
- Mark trade secret documents with your company name and “trade secret”
- Create a trade secret policy, train your employees, and keep a record of that training
- Remind employees of their obligations to protect trade secrets when they leave the company