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Hi, there! What'll it be today? Something rare and precious, huh? OK, how about a single malt aged in sherry casks? Ain't it nice to be able to enjoy the special things. Speaking of which, have you given any thought to whether your business involves trade secrets, confidentialities that critically differentiate you from the crowd, that can have a real competitive impact, and that you wouldn't want to have everyone out there find out about? Oh! You do? Well, if you haven't thought about how you go about protecting that information in a while, lemme give ya the low down.
The difference between a trade secret and something you can protect with a patent or copyright is that once it isn't a secret anymore, it's gone. With patents you have to disclose the information to the public, but they can't use it until the patent runs out in most cases. A trade secret is protectable only until it becomes public knowledge. AND, I bet you didn't know this. Simply having employees sign a contract with a clause in it in which they promise not to take or divulge your confidential information isn't enough protection. You didn't know that, did you? I thought not.
Trade secrets include not only information about how to do something, what to do to accomplish a given task, but also what not to do. Trade secrets include customer lists, unless your business just calls on one class of customer and they are all in the phone book. If there are tons of them, your list could still be a secret even though they are in the phone book. But if there are not that many, well, the phone book is the list. If you sell religious articles or support services for churches, you call on churches, there aren't that many of them and they're all in the book. Ever think of that?
How many times have you hired someone who recently had worked for one of your competitors and was bringing that competitor's inside info with them? And how many of your folks now work for a competitor of yours? And what did you do to assure that your confidentiality's didn't go with those people? Nothing? No letters to new employers? (Of course you have to be careful what you say in that letter, right?) Within your computer system, can anyone access any part of your confidential information without a special password which only "need to know" folks have? And does your computer system keep track of each "log on" to that section, who it was, when, how many times and what hours of the day or night? Can that be accessed from outside the office, even with the password? Can that information be printed out? Under what circumstances? Are you tracking print-outs as well? You might visit your favorite computer nerd and talk about Paranoia Programming, tracking when password controlled entry is coming from a machine whose user isn't passworded, when it is someone without the password trying to get in, profiling entry patterns for unusual characteristics, and checking the Paranoia Programs regularly to see what they are telling you.
When a trade secret dispute goes to court, the tests include an inventory of all the things you do to protect your confidentialities. The more critically valuable they truly are, the more extensive will be your protection protocols. The more casual your protection protocols, the less valuable the court will suspect they really are. Deciding to go to court is a process in itself, a process of trouble shooting your own case. You don't want to go to court because you're angry and have the court rule that you don't have trade secrets after all and are just pretending you do for marketing purposes. And, if you do decide to make a fight over it, you absolutely have to use summary seizure rules to go get the person's home computer seized so you can see if your stuff is on it, including his disc inventory.
You probably do not have anyone in-house with sophistication about this subject. Take your lawyer to lunch and talk it over with her. If she isn't really up on all this, and you really believe you have critically valuable confidential material, ask her to consult with someone who can help you install protection that suits your particular situation and that you are willing to afford and support. Putting it in and not using it is as bad as not having it at all.
Copyright 1997 - 2008 || Richard A. Solomon
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 | Licensing, Technology Transfers, |