Thursday, February 18, 2010

Trade Secrets versus Ordinary Patent Law

Trade secrets are a method of protecting highly valuable information, to a much larger degree than a patent. While patent violations are seen as almost a trivial matter by many (although admittedly, not by those whose patent was violated), trade secret violation cases usually get a lot of press and attention. Today we look at trade secret law in depth and criminal lawyers explain the differences between trade secrets and ordinary patents.

Ordinary patents
When an ordinary patent expires, the information it contains becomes the property of the public domain. Ordinary patents are sometimes accessible to the public, and while a particular process or product may be patented, there is nothing to stop a competitor using the information contained therein to set up an alternative process that reaches the same end for a consumer.
Trade secrets
Criminal lawyers that deal with trade secret law have to be familiar with state regulations - trade secrets are a state-by-state matter. If a company is looking to get a piece of information protected by trade secrets law, they will have to demonstrate three things (generally):
  • That the information is not common public knowledge, or common knowledge within the business's industry
  • That the information has demonstrable financial value
  • That the information has been protected and maintained as confidential by its owner.
The first and third requirements are obviously to prevent people becoming criminals after the fact - for example, if the recipe for KFC chicken had been in the public domain in the 1850s, and then Colonel Sanders had sought to protect it with trade secret law, every housewife who passed the recipe onto her neighbour could be considered a trade secrets criminal.
Maintaining a trade secret
By the same token, it is not fair to allow employees easy access to information which holds such a high value, and expect it to be kept entirely confidential. A company with a trade secret should take measures like the following to protect it:
  • Marking any documents that hold the secret as confidential
  • Restrict the copying of confidential documents
  • Requiring employees with access to sign confidentiality agreements and non-disclosure agreements

Criminal lawyers sometimes do not recommend that very valuable information be protected as a trade secret rather than with a patent. When reverse engineering is a possibility by a competitor, a patent may be a wiser choice.

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