October 12, 2015
Idea Protection Isn’t Easy, But It’s Worthwhile
In the information age as never before, ideas can be incredibly valuable. If you devise a business strategy, the implementation of which could substantially raise profits for a company, your idea is worth protecting. How do you get real idea protection, though, if you cannot trade mark, copyright, or patent your idea?
If you believe you need idea protection, you might have developed a Trade Secret. “The Uniform Trade Secrets Act (“UTSA”) defines a trade secret as:
- Information, including a formula, pattern, compilation, program, device, method, technique, or process,
- That derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and
- Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (Wex)
In order to protect a Trade Secret, you should consider using a Non-Disclosure Non-Competition Agreement (also commonly referred to as an “NDNC,” an “NDA,” etc., etc.) whenever you share your idea with anyone with the means, motive, and opportunity to misappropriate it.
In order to craft an effective NDNC, you will want to ensure that it covers all the important elements of a trade secret claim. That is, you must predict what you will need to prove in order to win a lawsuit against the person with whom you have shared your idea, and take reasonable steps to ensure your NDNC will create the conditions for that future victory. It is crucial, therefore, for you to know the elements of a successful trade secret claim, which are these:
- “The subject matter involved must qualify for trade secret protection; it must be the type of information trade secret was intended to protect, and it must not be generally known.
- The holder of the trade secret must establish that reasonable precautions were taken to prevent disclosure of the secret information.
- The trade secret holder must prove that the information was wrongfully acquired by another; that the information was misappropriated.” Id.
When drafting your NDNC, your attorney will need to be able to define the subject matter of the trade secret and state why it qualifies for trade secret protection. Remember, the information protected should be a secret, meaning it is not generally known.
Your NDNC should also state what precautions are being taken or will be taken to prevent disclosure of the secret information; this description can be somewhat broad, but it should be compelling to an objective third party (such as a judge). Also, your NDNC should expressly state that these precautions are considered by the parties to the NDNC to be “reasonable.”
Finally, your NDNC should make clear that the highest-risk opportunities for disclosure, whatever those may be under the circumstances, constitute misappropriation. In other words, if your biggest concern is, for example, someone leaving your new smart phone invention in a pub, your NDNC should include language making negligence with respect to the control of a covered device and the trade secrets it contains tantamount to misappropriation. This is somewhat technical and not easy for a non-lawyer to do.
With Signet™ General Counsel services from Executive Legal Professionals, your business’s General Counsel attorney can handle the creation and management of NDNCs to protect your Trade Secrets. Idea protection starts with hiring competent professionals who can support your business with essential services. Contact Executive Legal Professionals, today, and see how easy protection can be.
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