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1. Why are trade secrets important?
2. Is there any legislation which governs trade secrets? If so, how is a trade secret defined for the purposes of that legislation?
3. What requirements must be satisfied for information to constitute a trade secret? Please give examples of information which does and does not qualify.
4. How do trade secrets differ from patented and copyrighted information?
5. What is misappropriation of a trade secret? Please give examples.
6. Will involuntary disclosure of a trade secret result in loss of trade secret status? What practical steps can be taken to avoid inadvertent disclosure?
7. If an employee inadvertently discloses a trade secret, or discloses a trade secret without knowledge of its status as such, is that a “misappropriation”?
8. What practical measures and procedures can a company adopt to prevent its trade secrets from being misappropriated? Does the law provide any guidance as to which procedures suffice to demonstrate that a company intends to maintain the secrecy of information?
9. In particular, what steps can a company take vis-à-vis its employees and agents to prevent misappropriation of trade secrets? How can a company prevent departing employees from disclosing trade secrets to others?
10. What particular issues are raised by new employees who may know trade secrets belonging to their previous employers? How should the new employer approach this situation?
11. For what purposes are restrictive covenants usually employed? – e.g., non-compete, non-disclose, non-solicitation of customers, non-solicitation of employees.
12. Will the law enforce non-compete restrictive covenants? What factors are taken into account in determining the enforceability of a covenant? Do all states adopt a uniform approach?
13. How effective are restrictive covenants as a means of protection of trade secrets?
14. Are non-solicitation restrictive covenants enforceable? What factors are taken into account in determining the enforceability of the covenant? Do all states adopt a uniform approach?
15. What is an invention and disclosure covenant? Is it enforceable?
16. What points should be taken into account when drafting restrictive covenants?
17. What choice of law issues may arise when drafting restrictive covenants? Can a company obtain enhanced protection through the choice of governing law?
18. If a company suspects its trade secrets have been or will be misappropriated, what practical steps and strategies can be adopted to avoid or limit damage?
19. What evidential difficulties are faced by a company seeking to prove misappropriation of a trade secret or breach of a restrictive covenant? How have the courts approached such evidential issues, e.g., inevitable disclosure doctrine?
20. What remedies are available for misappropriation of trade secrets or breach of covenants? How effective are those remedies?
21. When will misappropriation give rise to criminal liability? What are the possible advantages of criminal proceedings over civil?
22. Where a company has failed effectively to protect itself by the use of covenants or otherwise, do remedies lie against third parties – e.g., the lawyer who drafted the covenants, the third party to whom the disclosure of information has been made?
23. Where a trade secret has been misappropriated, or a restrictive covenant breached, how can a claimant company prove that it has suffered loss as a result? How will that loss be quantified? If loss cannot be proved, what other remedies may be available?
24. How can the secrecy of trade secrets be maintained during litigation?
25. Footnotes
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