Do you pitch ideas and designs as part of a tender or potential
investment deal? Does your employee have access to your client
lists? Does your manufacturer have detailed information relating to
your products or suppliers?
These types of information can have limited or no protection as
intellectual property rights, but don't panic – you may
still have rights under the law of confidential information.
There are 3 key elements to consider:
Does the information have the
necessary quality of confidence? Broadly speaking this means that
the information is not public knowledge or freely available and has
some kind of commercial value.
Was the information obtained in a
manner which indicates that the information is confidential?This
can happen in three ways: (1) under contract (e.g. a non-disclosure
agreement); (2) through circumstances where a reasonable person
would believe the information is given in confidence; or (3) due to
the nature of the relationship between the parties (e.g. an
employee or professional advisor).
Has the information been used,
without authority, in a way that damages the party that owns
If the 3 hurdles above can be overcome, there may be a right of
action that could lead to an injunction, damages or both.
Helpful tips to protect your confidential information:
Take steps to prevent your
information entering the public domain. For example, encrypt your
files, have appropriate physical and digital security measures in
place and only share information with individuals that need to see
Enter into confidentiality or
non-disclosure agreements with each party you share your
Hammer home that the information is
confidential at every opportunity. Mark documents CONFIDENTIAL and
notify employees that information is confidential when they start,
throughout their employment and when they leave. Keep good records
of these efforts.
Keep tabs on your information and
record its whereabouts. If you have given an employee a
confidential document, make sure they return or destroy it as soon
as it is no longer needed or definitely when they are no longer
working for you.
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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The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
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