Trade Secret Basics
What are 'trade secrets'?
Trade secrets generally protect confidential information. Trade secrets will vary from state to state. Each state has a different variation on what's required in order to prove or establish that you do in fact have a trademark. But generally you have to maintain the confidentiality of proprietary information and also show that you can derive some kind of economic value from that proprietary information.
Does the federal government recognize trade secret protection at all?
The federal government does indeed recognize trade secrets and there are statutes that involve it. However, there is no particular filing procedure with the government or the United States Patent Framework Office regarding trade secrets. Rather, each state has their own set of rules and statutes regarding trade secrets.
How do I mark something 'trade secret'?
You do not typically mark anything as trade secret if you're disclosing it to the public. The whole point of a trade secret is that it's confidential. What you need to do to establish a trade secret is to take measures and certain precautions in order to establish that your trade secret is confidential.
How do I decide whether to patent something or to keep it as a trade secret?
There is a fine line between patent and trade secret and they sometimes merge a little bit. If you feel that you do not want to disclose the inner workings of your invention, then you should maintain it as a trade secret. However, if you do file a patent for something, you have to realize that within eighteen months from the filing date, it will be public and the public can access your pending patent application at any time.
How do I protect a trade secret?
The way to protect a trade secret is not by filing with any kind of entity. You have to take certain steps and measures to maintain the confidentiality of your trade secret. One of those steps, and this will really vary from state to state, is that you have to show that the proprietary information you have is confidential. One way to do that is to make sure that all your employees sign confidentiality agreements. This shows that you are labelling things as trade secrets and that you are making sure that only certain employees can have access to these trade secrets and others can't. Those are just simply examples of maintaining confidentiality.
What is a 'non-disclosure agreement'?
A non-disclosure agreement also may vary from state to state. They're going to have a little different wrinkles to it depending on the state you're in. But generally you want to state what it is that you're protecting in a non-disclosure agreement. You can do that in the actual non-disclosure form, or as an attachment to it. Also you want to have provisions in there, saying that the person who's signing it cannot utilize this information in a manner which you prescribed. Also, if there is a dispute within your non-disclosure agreement, what's very important is that you set forth what are the remedies and how you're going to mediate the situation whether its a state court or arbitration.
Can trade secret rights be transferred to another party?
Trade secret rights can be transferred to another party assuming that they maintain the confidentiality and all the measures to keep a trade secret.
