Limitations of Trade Secrets
Trade secret protection applies to business information only if sufficient care is taken to maintain its secrecy. Likewise, protection will be lost if sufficient care to maintain secrecy cannot be demonstrated. You should consider different ways to keep your valuable business information secret, including:
- Non-disclosure or confidentiality agreements
- Confidentiality clauses in employment agreements
- Encryption of information
- Password protection
- Lock and key
- Principle of least privilege (only those that must know will know the secret).
Additionally, trade secret protection is lost if a secret is disclosed publicly whether intentionally, accidentally, or illicitly. Although some recourse may be available in the case of illicit disclosure, protection is lost because a trade secret cannot reasonably be expected to remain confidential once it has been disclosed publicly.
Trade Secrets may not be the best IP protection choice if your competitors can easily reconstruct your creation. This could be done because your IP is too obvious, or it could be reverse engineered. Trade secret protection does not apply if someone else discovers your IP independently.
An invention protected as a trade secret may be conceived independently and then patented or otherwise used by someone else without infringing on the trade secret. Since trade secrets are not public, they do not count as a “prior art” and cannot be used to prevent an invention from being patented.
As a result, you may want to consider other forms of IP protection, or a combination of IP protections, if independent discovery is likely or your IP is hard to keep secret.