Trade Secrets

Trade secrets are the often forgotten types of intellectual property.  This is partly due to fact that trade secrets are by their nature “secret.”  Whereas other types of intellectual like trademarks, copyrights, or patents require public disclosure, trade secrets by definition must not be disclosed publicly.  In addition, unlike the more common types of intellectual property that can be categorized by their subject matter, trade secrets can be almost any type of subject matter or information.  Trade secrets can be very valuable, however, so it is critical for any business to audit their intellectual property and do what is needed to protect valuable trade secrets they may own.

A trade secret is simply described as (1) information that (2) gives you an economic advantage because it is not generally known by the public or by your competitors, (3) and that is subject to reasonable efforts to keep secret.  A trade secret can be technical information, know how, formulas, patterns, compilations, methods, techniques, and virtually any other type of information.

A trade secrets lives and dies by its secrecy.  Because trade secrets cannot be generally known by the public, all it takes of for the trade secret to be disclosed public in order for it to lose its protected status.  In addition, if you fail to take reasonable efforts to maintain the secrecy of the trade secret, it also loses its protected status.  This is why it is critical to ensure all persons who are exposed to your trade secrets have signed confidentiality or non-disclosure agreements.

Even if you are diligent in protecting your trade secrets form disclosure, the fact that a trade secret is really nothing more than information means it could easily be misappropriated or stolen.  Depending on the nature of the information, you may not even know your trade secret has been stolen.  Businesses should be diligent to ensure only authorized persons are exposed to their trade secrets.

One common situation involving trade secret misappropriation arises when employment ends and an employee leaves the business.  The employee may have been exposed to valuable trade secrets, so it is important for the employer to maintain proper practices to protect their trade secrets in these situations, like conducting an exit interview to verify whether the employee was exposed to trade secrets and giving the leaving employee a copy of the confidentiality agreement governing disclosure of the trade secret .  Its also important for former employees to not disclose information learned from their previous employer.  Employees should be wary of their former employers alleging they misappropriated trade secrets because there may not even be a protectable trade secret to begin with.

Ortiz Law is experienced in providing trade secret related services to businesses and individuals.

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