ARTICLE
5 November 2018

How To Keep Your Company's Trade Secret Protections From Being A Halloween Fright Night

SS
Seyfarth Shaw LLP

Contributor

With more than 900 lawyers across 18 offices, Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. Our high-caliber legal representation and advanced delivery capabilities allow us to take on our clients’ unique challenges and opportunities-no matter the scale or complexity. Whether navigating complex litigation, negotiating transformational deals, or advising on cross-border projects, our attorneys achieve exceptional legal outcomes. Our drive for excellence leads us to seek out better ways to work with our clients and each other. We have been first-to-market on many legal service delivery innovations-and we continue to break new ground with our clients every day. This long history of excellence and innovation has created a culture with a sense of purpose and belonging for all. In turn, our culture drives our commitment to the growth of our clients, the diversity of our people, and the resilience of our workforce.
Built into the definition of a trade secret is the requirement to have reasonable secrecy measures.
United States Intellectual Property
  1. Have trade secret protections. Built into the definition of a trade secret is the requirement to have reasonable secrecy measures. Companies that do not use non-disclosure agreements with their employees can be at a tremendous disadvantage if they decide to litigate against former employees for trade secret misappropriation. Well thought out policies, procedures, and agreements are a must to have defensible trade secret protections.
  2. Be careful who you hire and what baggage they may come with. Sometimes what appears too good to be true is in fact the case. Employers should take particular care when hiring high-level employees or sales employees from direct competitors. They should carefully review any restrictive covenants that the candidate has before extending an offer and ensure that the prospective employee does not bring data from their previous employer.
  3. Don't be a company that has a "Do what I say not what I do approach." Many company sabotage their own trade secret protections by requiring lower level and mid-level employees to follow policies, procedures, and agreements but then upper management, including executives, fail to abide by the same policies, procedures, and agreements—this can lead to a confused and disgruntled workforce. A culture of confidentiality, which is a staple of companies that adequately protect trade secrets, starts at the top.
  4. Protect your company trade secrets along the supply chain. In today's global and mobile economy, companies often hire contractors, consultants, or third parties to assist with products or services. Those same third parties are often provided access to the company's trade secrets as part of their role in the supply chain. Companies need to ensure that they have had adequate agreements and cybersecurity protections in place with those third parties to ensure that trade secrets are not compromised.
  5. Have coherent computer policies and enforce those policies. Companies conduct business via email and through the transfer and sharing of electronic files. Those files may contain trade secrets and can be easily transferred to a variety of storage devices and accounts, including computers, electronic devices, and the cloud. Companies should provide clear instructions to employees concerning acceptable use, storage, and transfer of company files and should enforce those policies. Some companies use software solutions to monitor compliance and prevent data extraction. Many trade secret cases involve the illicit transfer of company files to personal devices or accounts.

While these tips provide a good overview, it is highly recommended that you consult a Seyfarth attorney familiar with counseling or litigating trade secret matters to develop a robust plan to protect your company's trade secrets and intellectual property.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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