What You – the Business Owner – Can Do to Protect Your Trade Secrets

As a business owner, you know that your trade secrets are the lifeblood of your company. It is vital that you not permit your employees and independent contractors to copy them, run off with them, and undermine your business based on the very intellectual property that you’ve built.

“Great,” you say, “but how do I put that into action?” We’re glad you asked. There are several things that you can do on a daily basis to help prevent theft of your trade secrets. These will also make it considerably easier for you to win a case for misappropriation of trade secrets.

You may consider the following:

  • Itemize your Trade Secrets –

    One of the most hotly disputed aspects of any trade secret case is the identity of the trade secrets at issue. Defendants (typically former employees and independent contractors) often try to create doubt about what trade secrets may have been involved and whether they actually were trade secrets. You can remove much of this potential doubt by deliberately making a list of your trade secrets, itemizing them, and defining them. It is often a good idea to consult an experienced intellectual property litigation attorney for guidance on this step.

  • Track Possession or Custody of Trade Secrets –

    Another frequent avenue of defense is to create doubt as to whether a former employee or independent contractor had access to a trade secret. You can largely eliminate room for such doubt by creating paper trails for custody of your intellectual property. Non-competition agreements can be written to include specific acknowledgement of the trade secrets at issue, with references included to proprietary documents bearing filing codes (not attached to the contract), which the signing party can acknowledge having reviewed and that he/she will be using it on the job. To the extent sensitive documents like formulae, client lists, key financials, and sensitive strategic documents need to be accessed, creating protocols to track who has had access to what can create a very useful, chronological record in real-time. This is likely to deter IP theft among your personnel, and will make your burden of proof easier to meet in the event of litigation.

  • Digitize your Office –

    Few things compromise modern tacking systems like loose-leaf papers. They cannot be randomly searched, and their removal, movement, or deletions usually create no metadata or artifacts. On the other hand, digitized, encrypted files can be randomly searched for (by content or title, if OCR-optimized in PDF form) and found instantly over entire networks, and digital signatures may be created from which access and movements can be tracked.

Preparation pays off. Please feel free to contact us with any questions or concerns that you may have. Be well.

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