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What is a Trade Secret?

Trade secrets are a type of intellectual property (IP), but unlike the other types (copyrights, trademarks, and patent), there is no filing with the government to protect your rights.  A trade secret can by any formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not commonly known and that was derived by you that you use in your business to gain a competitive edge. 


How do I protect my Trade Secrets?

You protect trade secrets by implementing processes to keep the information secret and confidential, and if you do so properly, you can recover for certain damages when someone illegally obtains your trade secrets, i.e. through corporate espionage or breach of non-disclosure agreement.  However, other people can legally reverse engineer anything that you consider a trade secret and legally make and/or sell it so long as they obtained the ability to do such legally.  This differs from patents in that patents do not allow others to reverse engineer your product, but patents have a set life term, usually 20 years, while trade secrets can remain in effect indefinitely so long as you continue to take the necessary precautions to keep your trade secrets safe.


Courts can protect trade secrets by enjoining misappropriation, ordering parties that have misappropriated a trade secret to take steps to maintain its secrecy, as well as ordering payment of a royalty to the owner. Courts can also award damages, court costs, and reasonable attorneys’ fees. This protection is very limited because a trade secret holder is only protected from unauthorized disclosure and use which is referred to as misappropriation. 


Office of Policy and International Affairs. “Trade Secret Policy.” United States Patent and Trademark Office – An Agency of the Department of Commerce, Website

Certain patents are becoming increasingly difficult to obtain, including specifically business method and software patents.  So even if patent protection is not possible, implementing a trade secret is a great way to protect your confidential process or invention.  Recipes are another item that companies should always consider implanting trade secret protection for.  So long as you have proper processes to maintain the confidentiality of your trade secrets, they will not be known to the public.

It is important to speak with an attorney to determine if you have any trade secrets, and if you do, to implement the proper processes to ensure they remain secret. Contact us today to speak with an attorney who specializes in trade secrets.

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