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Jorda on : Trade Secrets Have Special Attributes

From the definitions of trade secrets given earlier, the following salient characteristics of trade secrets can be perceived. There is no subject matter or term limitation, nor is there a registration requirement and, in fact, there is not even a tangibility requirement. Furthermore, there is no strict novelty requirement, and trade secret protection obtains as long as the subject matter is not generally known or available. But secrecy is the most important criterion ? a sine qua non ? without exceptions. Hence, reasonable affirmative measures must be taken to safeguard and maintain trade secrecy. Among such measures are: ? Memorializing a trade secret policy in writing ? Informing employees of the trade secret policy ? Having employees sign Employment Agreements with confidentiality obligations ? Restricting access to trade secrets (on need-to-know basis) ? Restricting public accessibility (escorting visitors) ? Locking gates and cabinets to sites that house trade secrets ? Labeling trade secret documents as proprietary and confidential ? Screening speeches and publications of employees ? Using secrecy contracts in dealing with third parties ? Conducting exit interviews with departing employees, etc. While sufficient economic value or competitive advantage is also an indispensable requisite, the proper touchstone is not ?actual use? but only ?value to owner,? which means that negative R&D results can also provide a competitive advantage according to the law of the Unites States. Misappropriation of trade secrets is actionable if there is acquisition by improper means, or there is use or disclosure of a trade secret that was acquired improperly or in violation of a duty to maintain confidentiality. ?Improper means? includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means, while ?proper means,? which do not support a claim for misappropriation, include independent discovery, reverse engineering, or discovery from observing what has been allowed to enter the public domain. Remedies for misappropriation of trade secrets include actual and punitive damages, profits, reasonable royalties and injunctions.

Full post as published by Jorda on Trade Secrets on November 01, 2007 (boomark / email).