Trade Secrets

Trade secrets are economically valuable, non-obvious information about a process, method, or design that enjoy legal protection by virtue of the fact that their inventor makes a concerted effort to keep the information confidential. The best known example of a trade secret is the formula for Coca Cola®. The Coca Cola company keeps the formula a closely guarded secret by limiting access to the formula, requiring those who have this information to sign confidentiality agreements (see below) and by selling the flavor as a syrup to independent bottlers.

Copyright doesn’t protect the ideas, the intellectual content of a copyrighted work. That protection is afforded by patents. It doesn’t protect names, familiar symbols, “works for hire,” or anything that is viewed as common property. Works for hire are materials created by employees as part of the normal scope of their employment. If you create something as a work for hire then normally your employer becomes the “author” of the work created. The life of a copyright from a work for hire is different from that of the normal copyright and last 95 years from publication/presentation of the work or 120 years from its creation, whichever period is shorter.

Confidentiality or Non-Disclosure Agreements (NDA’s)

The key to maintaining a trade secret rests with the inventor’s ability to keep the trade secret confidential. This is typically done by requiring employees and others with whom the inventor has business dealings to sign confidentiality or non-disclosure agreements (NDA’s). These are legally binding agreements in which the recipient, either an individual or a business, of the confidential information obtains permission to use the information for the agreed upon purposes which are outlined upfront for a set time period without disclosing the information to anyone outside of the arrangement. These agreements are usually carefully crafted to protect the inventor from unintentionally forfeiting his/her patent rights as a result of the disclosure of any valuable propriety information.

Trade secrets are attractive because they can have an indefinite lifetime unlike patents which provide protection for a finite period of time but this is at the same time their downside – there is no minimum period of legal protection enjoyed by trade secrets and it is much more challenging to protect these by virtue of the fact that it is their very secrecy that safeguards them.