Thursday, June 13, 2024

Trade Secret Strategy

Trade Secrets

Photo by Peter Zurek / Shutterstock


Trade secrets can often be used to protect company knowledge and invention in instances where patent protection is either not desirable or available.

For example, when trade secrets are viewed as an alternative to patent protection they are commonly invoked in instances where the 20 year life of a patent isn’t deemed to be sufficient, or where the knowledge should never be made public (cf. the famous Coca-Cola recipe).

Significantly, trade secrets can also be used in instances where the knowledge at issue may not be considered patentable subject matter. In these cases, knowledge can often be construed as a trade secret, created on the spot with its formalization, and receive equally valuable and enforceable intellectual property protection.

Importantly, to qualify as a trade secret, knowledge or invention must be handled with a practice or system that includes marking trade secrets as such, and holding them in a secure manner.

Key to achieving this objective is devising a system to secure secrets that also allows business disclosure to selected individuals who are all also under individual non-disclosure agreements. Effective systems keep trade secrets with an administrator, an officer of the company, who controls their possession and use within the company. Each party who has access to a trade secret needs to be instructed in the significance of the secret, the terms of its existence, and its protection. The administrator needs to conduct periodic reviews of the trade secret to ensure it is being protected and used properly.

Under the law, trade secrets have no term under which they expire, but the secret stays in force only so long as it is properly marked and kept in confidence.

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