A trade secret is a form of confidential information that satisfies legal requirements. It can therefore be seen as an intellectual property right, like patents, trademarks, designs and copyright.

A trade secret has value – from being secret, is clearly delimited and measures are taken to keep it secret. That means that you can own the right to a trade secret and, if so desired, a trade secret can also be licensed or sold. Whilst it’s difficult to license general know-how or general knowledge, a licence based on trade secrets is easier to govern. 

Counterintuitively, a trade secret can be a key part of open innovation and shared in collaborations. 

Why are trade secrets important?

A trade secret can allow a company to take ownership and control of knowledge that their employees generate as part of their work, even in situations where the knowledge cannot be patented, protected with a design registration, or where copyright would provide inadequate control.  Additionally, for information in the form of raw data and for commercial information like prices and customer lists, trade secrets can be the only form of legal ownership. 

Other forms of IP can be used in conjunction with a trade secret as part of an overall IP strategy, but a trade secret can provide you with another way of taking control, and ownership, of the knowledge that the organisation’s employees have developed.  Often, the strongest control results from a combination of rights – for example, a patent to a generic method whilst keeping optimal parameters a trade secret. 

A trade secret can also provide you with a lead-time advantage  because competitors cannot replicate your technology or R&D developments, (which they otherwise might be able to, from looking at a patent application, for example).  When documented and managed properly, trade secrets can remain a secret as long as you want, however, it is important to note that most secrets do not last long. They are lost due to parallel development, reverse engineering, cybersecurity issues and the departure of employees. 

"A crucial point is to see your trade secrets in view of a “revealing strategy”. That is, to plan for the secrets becoming open. This planning should include not only how you keep the secrets, but also how you inform those in the know."

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How are trade secrets managed?

A trade secret is managed by continuously working with the scope of the secret; a patent is more definitive once it has been filed but with a trade secret you can change its scope at any stage once even after it has been documented as a trade secret. 

 

Once it has been documented, you can amend it and align it with your other IP, so that it fits in with your overarching IP portfolio strategy.

A crucial point is to see your trade secrets in view of a “revealing strategy”. That is, to plan for the secrets becoming open. This planning should include not only how you keep the secrets, but also how you inform those in the know. Trade secret management depends on HR (Human Resources), as well as an understanding of the organisation’s use of openness.  

Trade Secrets expert - Haakon Thue Lie

How can Dehns help?

Dehns will work with you to clearly define the scope of the trade secret, documenting the trade secret (in form of a clear description as well as metadata), timestamping it on your behalf; and keeping the data secure using our bespoke Trade Secret Management platform.  This provides evidence that the Trade Secret existed at a given point in time. Further, an attorney familiar with the secret (as would be the case for a patent-related trade secret for example) could testify in court about the scope and value of the Trade Secret. 

Our Trade Secret Management platform and service includes an annual review (at least), to ensure that they are still secret as well as allowing for further information to be added as required and updated if the technology evolves. The Trade Secret cases will show up in a portfolio view along with your other registered rights (patents, trademarks etc.), enabling them to be considered alongside your other intellectual property rights. 

We can help develop your trade secret strategy, and, where relevant, align it with your wider IP portfolio strategy, your engagement in open innovation, considering whether you want to keep it secret, whether you want to licence it, or whether you might be happy for it to become public knowledge at some time in the future. Dehns can also help you with your internal processes so that the management of trade secrets is integrated with your normal business processes and the way that you manage your company; for example, the way in which you onboard new employees and manage employees leaving the business. 

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