In the normal course of business, most businesses utilize proprietary information that is not generally known to their competitors, and that provides the business with a competitive advantage. This type of information may constitute a trade secret.
Trade secrets may include customer lists, business plans, proprietary recipes and formulas, special processes and formulas, pricing and accounting formulas used in a manufacturing process, and research and development information.
If a business takes reasonable measures to protect its trade secrets from disclosure, it can prevent a competitor from using its secrets even if the information is not otherwise protected by a patent or copyright.
The advantage of protecting this type of information as a trade secret is that as long as the secret is properly maintained, the secret cannot be used by business competitors.
For example, the formula for making Coca Cola is a trade secret. While that formula could have been patented, the formula would have become public domain when the patent expired. Instead it has remained the exclusive property of the Coca Cola Company, long after the date when a patent would have expired. Had a patent been sought, the formula would have ceased being a trade secret no later than the date of the publication of the patent.
Trade secrets are largely regulated by state law, meaning that there is some variation in the law from state to state. States may extend protections to trade secrets as long as their laws do not conflict with federal intellectual property statutes.
A three-part test is typically applied to determine whether information may be protected by trade secret law:
Is the information common public knowledge, or common knowledge within the industry;
Does the information have demonstrable value; and
Has the information been protected and maintained as confidential by its owner?
Disclosure of information to an individual who is not an employee of a business, and is not otherwise subject to confidentiality restrictions, will usually defeat its status as a trade secret. When disclosure of trade secret information is made to people outside of the business that owns the secret, care should be taken to ensure that anybody who accesses the information has committed to a written nondisclosure agreement.
- Businesses should limit access to trade secret information even within the company, restricting access to employees who have need for the information.
- Businesses should implement formal written policies that restrict who can access their trade secrets and under what circumstances access is permitted, and restrict the copying of confidential documents and information.
- Employees who do not need to know the substance of a trade secret should not be permitted access to that information.
- Any document or electronic record that includes a trade secret should be clearly marked as confidential.
- Employees who have access to trade secrets should be required to sign confidentiality and nondisclosure agreements.
In some ways, trade secrets provide less protection than patents, as it may be possible for a competitor to reverse-engineer a product to determine the secret information. That is the trade-off a company must make when choosing whether to try to obtain an indefinite benefit by maintaining information as a trade secret, versus the guaranteed exclusive use of the idea for a fixed number of years under patent law.