Trade secrets and NDAs

Not everything valuable should be registered

Registration means publication. A patent application is disclosed in exchange for a time-limited monopoly, and when the twenty years end the knowledge is public. For some things that trade is wrong: a formula, a process, a client list, pricing logic, supplier terms, the parameters that make a model work.

A trade secret has no expiry date. It lasts exactly as long as it stays secret, which is also its weakness: there is no certificate, and protection depends entirely on what you did to keep it confidential.

What makes information legally a secret

Broadly, the information has to have commercial value because it is not generally known, and the holder has to have taken reasonable measures to keep it confidential. That second element is where cases are won and lost. A company claiming a secret that circulated on an open drive, with no agreements and no access controls, is claiming something it did not protect.

Reasonable measures, in practice

• Confidentiality agreements with employees, contractors, suppliers and anyone receiving information in a negotiation.
• Access limited to those who need it, and a record of who has it.
• Marking confidential material as confidential, consistently.
• Exit procedures when someone leaves, including return and deletion.
• Confidentiality clauses that survive the end of the contract.

About the NDA you downloaded

Most template NDAs fail on the same points: they do not define the confidential information precisely enough to enforce, they have no term or an absurd one, they ignore permitted disclosures required by law, and they say nothing about what happens to the material afterwards. An unenforceable NDA is worse than none, because it creates the belief that the matter is handled.

What we do

We draft the agreements, design the internal measures that make the claim defensible, and advise on what should stay secret and what is better filed.