What is a Trade Secret?
Trade secrets are intellectual property rights that flow from keeping information confidential. To qualify as a trade secret, according to the World Intellectual Property Organization, the information must be “commercially valuable because it is secret, be known only to a limited group of persons, and be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.” Unlike copyright, patent, and trademark, trade secret law is governed by the states themselves though almost every jurisdiction has adopted the Uniform Trade Secrets Act in its entirety as law.
Trade Secret Practice
A typical day for a trade secret attorney often begins with client consultations and strategy development. These meetings are essential for identifying potential trade secrets within a company and developing robust strategies to protect confidential information. Lawyers work closely with clients to understand the nature of their business and the specific types of information that give them a competitive edge. This process involves a thorough analysis of the client’s operations, technologies, and market position to determine what qualifies as a trade secret under the law.
Once potential trade secrets are identified, attorneys advise clients on implementing reasonable measures to maintain secrecy. This may include recommending physical security measures, digital safeguards, and employee training programs. The lawyer’s role is to ensure that these protective measures are not only effective but also legally defensible in case of future litigation.
A significant portion of a trade secret lawyer’s day is dedicated to drafting and reviewing legal documents. This includes preparing confidentiality agreements (NDAs), employee contracts with trade secret protection clauses, and comprehensive policies for handling confidential information. These documents form the legal foundation for protecting a company’s trade secrets and are crucial in establishing the intent to keep information confidential.
When trade secret misappropriation occurs, lawyers spring into action to protect their clients’ interests. This may involve filing lawsuits for trade secret theft or misappropriation, seeking injunctions to prevent further disclosure of trade secrets, and representing clients in court or alternative dispute resolution proceedings. The litigation process can be complex and time-consuming, requiring attorneys to gather evidence, prepare legal arguments, and navigate the intricacies of trade secret law.
Ongoing compliance and risk management are also key components of a trade secret lawyer’s daily routine. This involves conducting regular audits of clients’ trade secret protection measures to identify and address any vulnerabilities. As technology and business practices evolve, attorneys must continually update protection strategies to ensure they remain effective. Additionally, lawyers often develop and deliver educational programs to help clients’ employees understand trade secret policies and best practices for maintaining confidentiality.
Collaboration with other professionals is an integral part of trade secret law practice. Attorneys frequently work alongside in-house counsel of client companies to ensure seamless integration of trade secret protection strategies into overall business operations. They may also consult with technical experts to understand complex information and technologies that form the basis of trade secrets. In cases of suspected trade secret theft, forensic specialists may be brought in to investigate and gather evidence.
Staying current with legal developments is crucial for trade secret lawyers to provide the best possible counsel to their clients. This involves keeping abreast of changes in state and federal trade secret laws, monitoring court decisions that may impact trade secret protection, and attending continuing legal education courses on intellectual property topics. The legal landscape surrounding trade secrets is constantly evolving, and attorneys must be prepared to adapt their strategies accordingly.
The practice of trade secret law also requires a deep understanding of various industries and technologies. Lawyers in this field often handle cases involving a wide range of subject matters, from pharmaceutical formulas and software code to manufacturing processes and customer lists. This diversity demands that attorneys continuously expand their knowledge base and develop expertise in multiple areas.
For more information, consider reaching out either to the following list of ASU Law professors in this practice area or check out the below list of secondary resources:
ASU Law Professors
David Franklyn
Tyson Winarski
Secondary Resources