Trade Secrets – The Need To Be Systematic

The term "trade secret" is invariably included in any definition of "Intellectual Property." However, while the majority of IP types are subject to strict rules, guidelines and timeframes due to the requirement of registration (e.g. patents, designs and trademarks), trade secrets do not require such formalities. Or do they?

Most people are aware of the Coca-Cola story - possibly the world's most famous trade secret - whose recipe has been kept secret since 1886. This has been the result of a carefully considered protection and "disclosure" strategy whereby access to the secret is strictly limited and restricted. While such a recipe can be a trade secret, virtually anything that adds value to a business can be regarded as a trade secret, and can include any method, formula, device, process or any information (technical or business, e.g., a list of suppliers) that gives its owner a competitive advantage. Even the results of failed R & D programs might be considered as a trade secret - providing a springboard for new research directions. Further, these trade secrets may be stored in a variety of ways ranging from traditional paper copies (e.g. reports and manuals) to computer and other digital forms, or even retained in the mind of employees without any documentation.

Before embarking on a trade secret protection strategy, the owners must first ask several key questions:

Do they know the information is actually a secret (confidential)? Do they know they have them? Who controls the secret information ? Where is the information held, how and in what form? Who has or has had access (both internally and externally)? Who needs to know the trade secret in its entirety or can the secret be broken up, so only few people know the entire secret? This is an effective control measure. Additional questions include:

What value does the owner place on these secrets? Is this value understood widely or only by a select group of individuals? Is the value realized in the short term or long term? Once this analysis has been undertaken, consideration is required as to how such secrets might be disclosed - inadvertently or deliberately. Disclosure might be through publication, at a seminar, during meetings, informal conversations, accidental or inadvertent disclosure, as well as theft. On occasion, a small amount of information may be released in order to create value, build up a brand or support other commercial reasons. Except for theft, all of these disclosure...