How Do I Protect My Idea? Part IV: Trade Secrets

You have a brilliant idea. With all your might, you are making it grow. You nurture it with your time, your energy, your hopes, your sweat, your dollars and your dreams.

This idea? Its time has arrived.

When you have put so much creativity, time and energy into something, you want to know that it is as well-protected as possible. My job as your attorney is to help you with the “how.” Sometimes, you know what kind of protection will work best for your idea. Sometimes, you don’t, or you aren’t sure which of your options is the best. This four-part series is a brief introduction to the various types of intellectual property. Today’s topic: trade secrets.

Trade secrets are often ignored in the excitement surrounding the federally registrable types of intellectual property, but this is a mistake. Trade secrets can be among the more versatile types of protection, and are the only way to protect ideas, as opposed to the expression or physical embodiment of those ideas. Trade secrets protect:

Information and/or ideas that: 1) have actual or potential economic value if they are kept secret; 2) cannot be easily ascertained by others who are using proper means; 3) are minimally novel; and 4) are the subject of reasonable efforts to maintain them as secret.

Trade secrets are an excellent choice for protecting an invention or discovery that does not meet the rigorous novelty standards of patent law, so long as it is not easy to reverse-engineer. They are also ideal for certain types of software, tests, recipes, and other intellectual property that is possible to keep secret.

How does one obtain trademark protection? It is simple enough in theory: all you need to do is keep the material secret using reasonable efforts. However, what constitutes reasonable efforts varies depending on the nature of the secret and the size of the company. In general, protection involves legal safeguards such as nondisclosure agreements and physical safeguards such as locks. Maintenance is also facially straightforward: continue to keep the material secret, and take action against anyone who threatens to reveal it (e.g., get an injunction). You should consult with an attorney about how best to protect and maintain your trade secrets and what to include in your nondisclosure agreement.

The greatest benefit of trade secret protection is that it is the only way to protect certain types of intellectual property, such as ideas or inventions that are not sufficiently novel to obtain patent protection. Trade secret protection can be combined with copyright or patent protection (at least until the point of patent registration). Trade secrets can also last indefinitely; the recipe for Coca-Cola, for example, has been maintained as a trade secret for over one hundred years.

The greatest drawback of trade secrets is that they are destroyed by being revealed. There are some remedies for this, but an unhappy former employee has the potential to do a great deal of damage to a company whose most important intellectual property is protected by trade secrets.

Well-known intellectual property protected as a trade secret includes the formula for Coca-Cola and the recipe for Thomas English Muffins’ “nooks and crannies.”