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What is a Trade Secret > Not Publicly Known - Pg. 134

A Primer on Intellectual Property 134 Trade secrets can be combined with other protections like copyrights or patents to offer the maxi- mum level of protection. For example, source code can be registered for a copyright and maintained as a trade secret. Only certain people have a legal duty to maintain your trade secrets. If a competitor overhears one of your employees chatting to another about a trade secret and the competitor then exploits that information, you have recourse against your employee, but probably not against the competitor who has no obligation to maintain confidentiality of your trade secrets if legally acquired. This reality leads to two requirements of any good trade secret protection program: · Creating that legal duty wherever necessary through the use of agreements. · Establishing systems of physically protecting the trade secret information. Trade secret law varies from state to state and country to country, so local counsel is required. A discussion of protecting trade secrets abroad follows in the "Protecting Your Assets: Enforcement: International Considerations" section. What is a Trade Secret A trade secret is any information like a formula, compilation, program, method, process, technique, or the like that: · Gives a business a competitive advantage. · Is not generally known by the company's current or potential competitors and cannot be dis- covered through legitimate means. · Is the subject of the company's reasonable secrecy efforts. A trade secret can be protected forever as long as each of the above criteria is met. This is one reason some companies elect trade secret protection over patents to protect some IP: the content of patents is made public and expires after 20 years. Imagine if Coca-Cola had patented its formula instead of using trade secrets: it would have lost its primary asset to the public domain years ago. Competitive Advantage A trade secret can protect any information that gives the company a business advantage, assuming the information also meets the other two criteria of secrecy efforts and general unavailability of the information. Pretty much anything you don't want other companies to know--object code, program structure and concepts, results of your QA, business development plans, research and development in progress, project management processes, and so on--can qualify for trade secret protection. Not Publicly Known Trade secret protection is not available for information that is publicly or generally available to com- petitors or customers. This can include: · Any materials the company releases without an NDA and the appropriate notices, such as a design or technical document. · Information released accidentally, such as a document left on an airplane or overheard from an employee at a restaurant. · Data that can be figured out from a released product (in other words, if a product can be reverse engineered, the product can lose its trade secret protection). IP 101