TRADE SECRETS: THE INTELLECTUAL PROPERTY APPLICATION SERIES

In this ‘Intellectual Property Application Series,’ I’ll be discussing the trade secret.  I’ll explain what it is, what to know about protecting one, and why it is an important tool for protecting your invention.

What a Trade Secret is:

A trade secret is a type of intellectual property that is broadly defined, but is generally a technique or device used to manufacture a product that is kept under secrecy from competitors.   Technically, a trade secret can be defined as anything that gives a company a competitive edge and that can be kept secret. This type of intellectual property can be either commercial or industrial secrets. Rights to trade secrets do not expire but can be lost if the secret is discovered.

Trade secrets do not provide the exclusive right to exclude third parties from making commercial use of an invention.  This type of protection is offered by patents alone. Instead, trade secrets offer protection from unauthorized disclosure and use, i.g. misappropriation.

What to Know About Protecting a Trade Secret:

The United States offers trade secret protection. This protection is mandatory as members of and under the regulations of the World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual-Property Rights (TRIPS).  There is no database of trade secrets and there is no registration process. Also, there exists no procedure for “maintaining” a trade secret, as there is for a patent or trademark. There is, however, recourse for if a trade secret is violated.

The U.S. allows the option for trade secret disputes to be filed under state laws or under federal law.  It should be noted however, that state laws regarding trade secrets may differ. That is, unless the state has adopted the Uniform Trade Secrets Act (UTSA), as most states have.  If the state has not adopted the UTSA, its regulations will be unique to that state.

If trade secret violation is proven in Court, trade secrets are protected by enjoining misappropriation. I can also be ordered that the parties that misappropriated a trade secret must maintain its secrecy. In addition, Courts can order payment of a royalty to the trade secret owner, award damages, court costs, and reasonable attorneys’ fees.

The most important key for an owner to protect their trade secret is to take “reasonable steps” to maintain secrecy.  If the secret is discovered because the owner did not take reasonable steps for secrecy, if the information is independently discovered, or if it becomes generally known, a trade secret no longer be protected. Trade secrets do not expire and as such, protection continues until discovery or loss.

Why it is an Important Tool for Protecting Your Invention:

Trade secrets are important tools for their ability to provide a very specific and special type of intellectual property protection.  Some trade secrets are potentially eligible for protection under patent regulations. Most do not meet the criteria for being a patentable invention under the rules of the United States Patent and Trademark Office (USPTO). Without the niche option provided by this type of protection, trade secrets would be a lost asset and their commercial value would also be lost.

Don’t leave a matter as important as your intellectual property to chance.  Willing help in the form of an experienced legal team is here and is just a call away.  We have patent attorneys located in Charleston, SC; Greenville, SC; and Knoxville, TN. Please contact us if have an interest in a trade secret or other intellectual property applications.