President Obama signed the Defend Trade Secrets Act (“DTSA”) that protects intellectual property, specifically trade secrets, against misappropriation. The DTSA expands protection available under the Economic Espionage Act of 1996 (“EEA”).
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Studies indicate that trade secrets are the most prevalent form of intellectual property protection. Historically, trade secrets prevented foreign enemies from obtaining covert military advancements. Today, trade secret protection extends to many types of information, including a design, compilation, formula, research, strategy, technique, practice, instrument, pattern, process or even sometimes a customer list.
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Trade secret lawyers help businesses and individuals identify trade secrets and how to best protect them. In evaluating the intellectual property of a business, lawyers can perform a due diligence review to help identify and valuate the intangible assets of the business, including trade secrets.
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Unlike other forms of intellectual property, trade secrets are not registered. The USTA definition tells us that, in order for the right in a trade secret to exist, it must be:
• valuable because others don’t know about it;
• something others can’t get the information about without obtaining it from the owner; and
• kept a true secret by the owner taking active and reasonable measures to protect it from becoming publicly known.
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A trade secret is any formula, process, design, or compilation of information, which is not generally ascertainable, by which a company can obtain an economic advantage over competitors or customers.
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Because trade secrets are no registered, the steps to create and protect a trade secret are those required to keep it a secret or at least confidential. These steps can include confidentiality clauses in employment agreements and independent contractor agreements, non-disclosure agreements, password protections, limiting the information on a “need to know” basis, and other safeguards that ensure a trade secret remains confidential.
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The cost of trade secrets comes from two stages: (i) the development of the trade secret and (ii) the costs to keep the trade secret a secret. There is no filing requirement unlike patents, copyrights, and trdemarks.
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A trade secret protects those business secrets not generally ascertainable to the public, by which a company can obtain an economic advantage over its competitors or customers. Specifically, trade secret protection affords protection from unfair competition through the misappropriation of the trade secret by an employee or third-party. For more information about trade secret protection see our post, What Does A Trade Secret Protect?
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Put simply, a trade secret is information which derives independent economic value from being not generally known or readily ascertainable through proper means. It could be anything from a customer list to the highly secret formula for Coca-Cola.
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Unlike other forms of intellectual property, like patents or copyrights, there is no formal registration process for creating a trade secret. Instead, the act of keeping the information confidential and taking reasonable steps to safeguard it creates the applicable rights.
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The elements of a trade secret misappropriation claim are: (1) a trade secret existed; (2) the trade secret was acquired through a breach of a confidential relationship or discovered by improper means; and (3) use of the trade secret without authorization from the plaintiff.
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Common defenses to a trade secret misappropriation claim include: refuting the trade secret status of the information for various reasons, such as claiming the information was publicly available; (2) claiming the defendant independently developed the secret; and (3) claiming the defendant acquired the information through lawful means, like reverse engineering.
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Under the Texas Uniform Trade Secrets Act (TUTSA), a plaintiff must prove (1) it had a legal recognizable trade secret and (2) the defendant misappropriated the trade secret.
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A trade secret protects confidential business info that gives a company an edge and guards against unfair use by employees or third parties.
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Trade secret misappropriation damages are those monetary recoveries available to a trade secret owner whose trade secret is acquired by another through improper means, by mistake or accident, or by a current or ex-employee.
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Trade secrets provide businesses with a competitive advantage. Learn how they are defined, protected, and how they differ from other intellectual property forms.
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