Trade secrets are confidential proprietary information that provide a business with a competitive advantage or actual or potential economic benefit. A Priori lawyer can help you identify what qualifies as a trade secret and what you need to do to protect it from trade secret infringement under trade secret law.
Unlike patents and trademarks, you do not protect trade secrets from trade secret infringement by registering them with the government. Trade secrets are largely protected by state statutes modeled after the Uniform Trade Secrets Act (UTSA). Under the UTSA, your business can protect its information as a trade secret under trade secret law if:
- the information is one of the types eligible for trade secret protection (such as a formula, pattern, compilation, program device, method, techniques, or process);
the information provides your business with independent economic value by not being generally known and not being readily ascertainable; and
you take reasonable efforts to maintain the secrecy of the information.
The recently passed Defend Trade Secrets Act aims to make state laws governing trade secrets more predictable by establishing rules at the federal level. The Act has broadened the definition of trade secrets and gives companies the option to pursue civil actions related to their misappropriation in federal court. The Act also protects whistleblowers from retaliation after disclosing a trade secret to an attorney or government official. Furthermore, trade secret owners can now seek an order to seize allegedly stolen trade secret assets without prior notice. The Act applies broadly to any transaction or relationship involving a company with American assets or ties, including their hiring and firing procedures.
If there is no public disclosure of the trade secret, trade secret protection will continue indefinitely. However, once you make a trade secret public, even accidentally, anyone can use it. You can protect trade secrets from disclosure under trade secret law by implementing non-disclosure agreements (NDAs) with employees and third parties with whom you engage in business.
A Priori attorney can help protect your business from unauthorized disclosure and use of trade secrets and can help advise you on when to use an alternative form of intellectual property protection to secure your trade secret.
The cost of protecting your trade secrets from trade secret infringement ranges based on what type of protection you seek and your unique situation. Through the Priori network, you can receive transparent flat fee packages for non-disclosure agreements ranging from $150-$1098. Hourly rates for lawyers with experience handling trade secret law start around $175 per hour up to $450 per hour. In order to get a better sense of cost for your particular situation, put in a request to schedule a complimentary consultation and receive a free price quote from one of our trade secret lawyers.
When is the acquisition of a trade secret considered unlawful?
If a trade secret is acquired through unlawful means or a breach of confidence, the use of of the trade secret is illegal under trade secret law and is considered trade secret infringement. However, if a trade secret is obtained through independent discovery, reverse engineering, or your own failure to take reasonable protective measures, the use of the trade secret is lawful.
How can an attorney help protect my trade secrets from my employees?
An attorney will help you create protections for your trade secrets by writing NDAs and non-compete clauses for your business’s employment contracts. Employees create and use trade secrets, so clearly communicating confidentiality expectations through these agreements is critical to avoid trade secret infringement.
How can an attorney help protect my trade secrets from third parties such as vendors or independent contractors?
An attorney can also help you write NDAs for any disclosure of trade secrets to third parties. If a trade secret is disclosed to a third party without confidentiality requirements, the secret will no longer be legally protected under trade secret law, as courts will find that your company did not make a sufficient effort to keep the trade secret a secret. A third-party NDA should specify the information that will be disclosed as well as the process for returning any confidential information at the termination of the relationship with the third party.