IP Essentials: Q&A Series

Q What are some reasonable procedures for protecting a trade secret? A Standard agreements and procedures include the use of confidentiality, non-competition, and non-disclosure clauses in employee, and consultant and independent contractor agreements. Exit policies should be in writing and remind departing employees of their specific confidentiality obligations. Other reasonable procedures to protect trade secrets include letters to the new employer of a departing employee, labeling documents accordingly, providing access only on a need-to-know basis, and creating an unsolicited idea policy. Q How do I formulate a trade secret protection plan? A Some considerations when developing a trade secret plan include • creating a written trade secret policy; • informing and educating employees about the plan; • identifying and restricting access to trade secrets; • maintaining computer secrecy; • eliminating all disclosure of trade secret information to the public; • using confidentiality and non-disclosure agreements when dealing with employees and third parties; and • appointing a custodian of trade secrets to monitor policy and communications.

Q Do I need to register or file my trade secret with the government for protection? A No. Unlike patents, trademarks, and copyrights, trade secrets need not, and indeed cannot, be filed or registered with any government body or agency for protection. A trade secret is protectable based on the fact that

"Unlike patents, trademarks, and copyrights, trade secrets need not, and indeed cannot, be filed or registered with any government body or agency for protection. "

it is not known to anyone who is not required to maintain it in confidence. And a trade secret remains protected as long as it remains unknown to others. Q What kind of laws protect trade secrets?

A Forty-eight states, including Massachusetts, have enacted the Uniform Trade Secrets Act (UTSA), as has the District of Columbia and Puerto Rico. North Carolina has its own trade secret statute that is similar to the UTSA, while New York still applies common law. The Defend Trade Secrets Act enacted in 2016 allows an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated.

IP ESSENTIALS: TRADE SECRETS

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