What is a trade secret? First, what is not a trade secret? Business owners can protect their know-how by several methods. But most protections exist in exchange for the business giving access to the know-how to the public. For example, patent protection requires that the inventor tell the world how to make and use his invention in exchange for giving the inventor the right to keep others from using it without his permission for a period of time. After that period of time expires, the world is free to use the invention. Trade secrets are secrets, so they are not the same as patents.
Generally, trade secrets are defined as "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.". Coca-Cola's formula is a trade secret.
Generally courts consider several factors to determine if information or an idea deserves trade secret status and protection. These factors include:
(1) How widely is the idea or information known outside the business? The information must be "substantially secret."
(2) Who within the business knows the idea or information? The business must exercise reasonable precautions, such as limiting exposure to those who need it and assuring that all who have exposure to the information or idea are aware that it is to be kept confidential.
(3) What measures has the business taken to ensure that the idea or information remains secret? The business must take reasonable precautions to prevent disclosure to others.
(4) How valuable is the information to the business and it's competitors? There must be commercial value to the information or idea.
(5) How much effort or money has the business expended in developing or acquiring the idea or information? The greater the expenditure, the more likely the information or idea will be considered a trade secret.
(6) How difficult would it be for others to properly acquire or duplicate the idea or information? If simple library research or data gathering can duplicate it, it is unlikely to be protected.
Next time, I'll talk about the protection of trade secrets under the law.
If you have any questions about trade secrets, or any other aspect of intellectual property law, please don't hesitate to contact me at JDellinger@mainspringlaw.com.