If you want to protect information as a trade secret, it is vital you implement sound measures to protect that information against disclosure. This is the wise course, not only because it can help you to keep your competitive advantage, but also because if a trade secret litigation should become necessary, it will add to the solidity of your arguments of protectability. In fact, for information to even qualify as a trade secret, it must be the subject of reasonable efforts to maintain its secrecy. Absolute secrecy is not a requirement, but there must be enough secrecy so that a third person would have difficulty in acquiring the necessary information without resorting to illegal tactics to acquire the company’s trade secrets. What kind of measures constitute a reasonable effort to protect trade secrets?
Put Security Policies in Place
To begin, you must identify what your company’s trade secrets are. Once the matters that constitute trade secrets are clearly identified, you need to put security measures in place that protect only said information. Why is this important? If your security measures are overbroad, they will become difficult to employ consistently. If the measures are not employed consistently, you could lose trade secret protection in a litigation. Therefore, make sure the measures are specific to trade secret matters and easy to employ on a consistent basis.
Appoint a Security Officer
After the policies are in place, appoint a reliable security officer to implement them. It is usually a good idea to choose a high level employee or executive for this position. The officer chosen should have an in-depth knowledge of the company’s trade secrets and inner workings. They should also be granted authority to enforce compliance with security policies.
Obviously, the measures a company chooses to implement will vary based on the kind of trade secret that needs protection, the quantity of persons employed by the company and whether or not non-employees can visit the company’s facilities. Taking such factors into consideration can help a business owner to determine which of the following measures they need to take:
limiting the distribution of documents to a need-to-know basis;
employee confidentiality agreements;
numbering documents (when reasonable) and maintaining ledgers to track each copy;
prominent labeling and identification of documents or other items that contain confidential or sensitive materials;
implementing a document destruction program;
visitor control (including registration, badging, supervision);
“locking” computer systems and sensitive areas, such as document storage or computer document storage areas;
periodically circulating reminders warning employees to protect confidential information
These are only a few of the hundreds of specific measures a business owner can take or a security officer can implement to protect trade secrets. If you would like to discuss your specific circumstances with me for advice on what measures you should be enforcing, please feel free to contact me.
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida. She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.