Monday, November 12, 2012

What's the Big Secret?

In order to qualify as a trade secret, the intellectual property at issue must, generally speaking, (1) derive value from not being generally known or readily ascertainable; and (2) be protected as a secret through reasonable security measures. I often get calls from prospective and existing clients that tell me they own a trade secret for such reasons as:
  • I came up with it
  • Noone else has it
  • It is a secret in my company
While these may, along with other factors, be important when analyzing whether or not you own such a secret, they are not, alone, sufficient to qualify for such protection. A trade secret owner must instead meet the definitional requirements, generally stated above.
So, you should adhere to the following five guidelines when determining whether or not you may have a protectable secret:
1. Identify what you believe to be your intellectual property. In doing so, identify it with particularity. For example, do not simply say software. Instead identify what part of that software makes it qualify, and in doing so, identify that which you would exclude as not being yours alone (understanding that the entirety of your software may still be entitled to protection as a compilation trade secret).
2. Identify how the property enables you to profit and gain a competitive advantage.
3. Identify the security measures you have implemented and use to protect the secrecy.
4. Consult with an intellectual property attorney to confirm the existence of a trade secret, identify additional means to protect, and devise a strategy for addressing any misappropriation.
5. Be prepared to take action in the event of a misappropriation.
Ultimately, adhering to these five guideliness will help you react quickly, either with court intervention or otherwise, should an issue arise related to your property. An attorney will be able to more quickly analyze your position and advise you regarding what to do next as well, including whether you merely own UnIntellectual Property. This will save you time, money, and possibly your ability to continue to claim rights in the property as a secret.

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