What is a trade secret?
Trade secrets can be your company’s most valuable IP asset, differentiating it from your competitors. Take, for example, a famous soft drink company: the recipe of its soft drink product is a very closely guarded secret, so only those who know how to make it can. This recipe and method is not written down as it could be exposed or more easily passed on. Instead, it stays in the minds of its creators/workers and is then passed through the business hierarchy, staying with senior members of the company.
Broadly, the term “trade secrets” deals largely with confidentially, or closely held information which can take the form of unpatented inventions, formulae or designs. It is something your business would not want a member of staff approaching a competitor with. Assets which can be considered trade secrets may include ‘know-how’ databases, recipes, technical designs, software code or even pricing matrices, and must be protected via the implementation of a trade secrets policy.
What is the difference between patent and trade secrets?
Unlike patents, trade secrets are protected without registration; that is, trade secrets are protected without any procedural formalities. As a result, a trade secret can be protected for an unspecified period of time, thus proving more advantageous than patents, which have a protection limit of 20 years. This can be a particularly beneficial solution where a technological product cannot be easily reverse-engineered or, in fact, where a trade secret does not qualify for formal registrable protection.
There are, however, a handful of conditions for the information to be considered a trade secret, and compliance with such conditions may turn out to be more difficult and costly than would appear at first glance. While these conditions vary from country to country, some general standards exist which are referred to in Art. 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement):
- The information must be secret (i.e., it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question)
- It must have commercial value because it is a secret
- It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements)
How do trade secrets apply to me?
Your company may have certain forms of know-how or organizational knowledge which are critical to its competitive advantage, but which retain value only if they remain a secret. These can take a variety of forms, including a critical database, algorithm or software code, a technical attribute of a piece of equipment, a unique process, a recipe or secret ingredient in a product or other forms of potentially registrable IP which may be ill-suited to formal methods of protection. It is crucial to recognize that just merely having the policy, protocols, and password protections, etc. in place may not be sufficient, as an effective trade secrets policy needs to be recognized by all staff and embedded within the IP culture of a business.
Where do I start when it comes to protecting trade secrets?
Our advice to clients is to begin simply by creating your own internal register or list of your trade secrets. You can call it your trade secret register which then becomes a highly confidential record of the various trade secrets the business owns and relies on. It can be in different formats, maybe as simple as an internal Wikipedia or on a spreadsheet. You can note when the trade secret was created, what format it’s in, where its located / stored, who has access to it (through password protection or restricted access to the server / cloud file) and that’s a good start. You can then let staff know you have created this trade secret register and that the information or content contained within it is highly valuable to the business, protected by additional levels of security and confidentiality and staff should not disclose any such trade secret materials with any third parties, without prior approval of senior management. That’s a good start.
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