Trade Secrets

Protecting your company’s valuable information

Confidential:

Attorney-Client Privileged

Trade Secrets

= information

Neither the form of the information nor media that the information is stored matters: written; human memory; electronic; physical sample, etc.

Trade Secrets• Under Indiana Law, means information including

a formula, pattern, compilation, program, device, method, technique, or process that:– (1) derives independent economic value, actual or

potential, from not being known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

– (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Trade Secrets• Under Indiana Law, means information including

a formula, pattern, compilation, program, device, method, technique, or process that:– (1) derives independent economic value, actual or

potential, from not being known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

– (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Trade Secrets• Under Indiana Law, means information including

a formula, pattern, compilation, program, device, method, technique, or process that:– (1) derives independent economic value, actual or

potential, from not being known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

– (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Trade Secrets• Under Indiana Law, means information including

a formula, pattern, compilation, program, device, method, technique, or process that:– (1) derives independent economic value, actual or

potential, from not being known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

– (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Examples of Trade Secrets• Manufacturing methods, jigs, processes.• Formulas.• Customer lists.• Customer preferences.• Material composition.• Computer code.• Engineering drawings, specs, changes.• Pricing, cost & profit information.• Data compilations.• Information re: regulatory approval.• Failures; what did not work.• Bids.• Lab notebooks, meeting minutes.• Legal information.• Vendor & raw material identification, pricing,

etc.• Testing and QC procedures.

Examples Of Efforts that are ‘reasonable” to maintain secrecy

• Confidentiality agreements.– Vendors– Employees– Visitors

• Security alarms, systems.• Restrict computer access (user groups, limited

authorization, passwords).• Legends on documents: “Confidential” or “Trade Secret”.• Limit tours and other access.• Visitor sign-in log.• Compartmentalize information.

Courts look to what efforts that you undertook – be active, not passive.

Trade Secrets• Trade Secret Owner has right to recover

money and stop misappropriation of trade secret.

• No trade secret violation if:– Information in the public domain (known or

“readily ascertainable”).– Someone independently develops.– Reverse engineered a competitor’s product.

Misappropriation

• Trade Secret information is “misappropriated” (i.e. infringed) if improperly:

1. Acquired;

2. Used; or

3. Disclosed.

Or any combination of those.

Confidentiality Agreements• Before disclosing your ideas or information to a company/person for

their consideration, consider having them sign a confidentiality agreement.

• Disclose only on a need to know basis.• Reclaim possession of documents afterwards.• Preserves foreign patent rights; reduces likelihood of

theft/misappropriation of the invention; evidence of prior invention for subsequent inventorship disputes.

• Confidentiality agreements typically include a general description of your work, language where company agrees not to disclose or use your work without your permission, and signed by both parties.

• Beware: duration clauses (this Agreement shall be for a term of three (3) years…”) creates a strong argument that the information is no longer confidential thereafter.

Trade Secrets

Protecting your company’s valuable information

Confidential:

Attorney-Client Privileged