I. BackgroundA. DomesticIn the U.S., Trade Secret law is one of the primary legal and most critical means by which a company protects its intellectual property. Other means are: patents, copyrights, and trademarks. Trade secret protection is not covered by any Federal law, but are protectable under a States common law or, if the State has adopted the Uniform Trade Secrets Act [UTSA], then the UTSA would apply. (As of the end of 1995, 40 States have adopted the UTSA, MA. has not as yet).
B. InternationalMost countries have now adopted express statutory protections for trade secrets, and specific provisions were included in NAFTA (North American Free Trade Agreement) [effective, 1/1/94] and in the GATT (General Agreement on Tariffs and Trade) [effective 1/1/95]. Although the specific requirements vary from country to country, the general tenor follows U.S. laws with respect to the definition of a trade secret, and the requirement to take reasonable steps to maintain secrecy.
II. TERMS/DEFINTIONSA. PUBLIC DOMAIN INFORMATIONInformation is in the public domain when it is legally available for anyone to use. For example, many government documents, including government funded software, are in the public domain and may be freely used and copied.B. PROPRIETARY INFORMATIONAny information that is not in the public domain would be considered proprietary in that the creator can claim ownership to the information. Proprietary information can be protected in several ways, i.e. trade secret law, patents, copyrights, or trademarks.C. CONFIDENTIAL INFORMATIONConfidential information is any information that is restricted from unlimited disclosure by the entity or person who owns it. Typically, when a company creates and properly protects information, it is generally considered to be both confidential and proprietary information to the company.D. TRADE SECRET INFORMATIONTrade secret information is any confidential business information that has commercial value, is not in the public domain and the company takes reasonable steps to maintain secrecy. If these conditions are satisfied, almost any information may be protected as a trade secret, including customer lists, strategic business data, i.e. future product introductions, etc.
III. PROTECTIONS REQURIEDA. Internal Protectionsa) Policy/Procedure: Company should have written policies and procedures regarding the care and handling of both company and incoming third party confidential information. b) Each employee should sign a Employee Non-Disclosure/Inventions Agreement. c) Physical Security, i.e. lock all confidential/trade secret materials in either a safe or a cabinet when not in use, and should be under the control of an officer or responsible department manager. d). Notices: must be placed on all confidential materials, including, slides used in both internal and external presentations etc., a simple notice is: CONFIDENTIAL/PROPRIETARY
e) To protect a technical proposal, whether in response to either a solicited
or unsolicited customer request, the following notice should be affixed to the
cover page [also a good practice to place the above notice on the bottom of each page,
assuming all the information is in fact confidential:
B. External Protectionsa) A Non-Disclosure/Confidentiality agreement must be signed before releasing any confidential information outside of the company. b) A License Agreement which includes a confidential clause, must be signed before releasing any software outside the company. A Source License agreement should be used before releasing and source materials/code.
IV. NONDOSCLOSURE/CONFIDENTIALITY AGREEMENTSA. The following, as a minimum, should be included:
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