Tips on European Trade Secrets

Will the new European legislation on Trade Secrets handle the most common situation of unauthorized procurement, use or disclosure of Trade Secrets, i.e. a former employee, who recently left the company bringing some compiled information on clients and other critical data along? These are our 7 advices on how to prevent situations of unauthorized procurement, use or disclosure of Trade Secrets:

 

 

7 advices on how to prevent situations of unauthorized procurement, use or disclosure of Trade Secrets

1) Awareness is key!
You can never stop critical information from unauthorized use, wilful or unwilful, if you have not taken measures for letting every employee know that your company is handling information critical to the business, some of it to be classified as Trade Secrets, and that such information has to be handled with care. This will lower the risk for careless handling of Trade Secrets.

2) Make a risk assessment
It is normally beyond human nature to identify all, i.e. all, information that might be considered Trade Secrets by the company. Accordingly, assuming company responsibility should include conducting a proactive risk assessment.

3) Classify your business information
All businesses have critical business information. If very critical, classify it as Trade Secrets, if not so critical, but not open to the public, classify it as Critical Information, and if easily obtainable on the market or on the Internet, classify it as Open Information. Then let all your staff know about this classification, with plenty of examples. Use proper marking, see below.

4) Keep on informing!
Awareness and knowledge of the classification of specific information is not something executed by one point of information. This is both an act of information and education. It needs to be repeated. Over and over again. Mark documents etc with “Trade Secret ”or “Confidential” whenever possible. Start staff information, orally or in writing, with a general remark that some of the information to be presented might be critical business information.

 5) Limit the access to Trade Secrets
In some cases, access is not for everyone. Even though documents on the CTO’s desk might comprise Trade Secrets and, accordingly, it is not for any employee entering the room when it is empty to inspect, there should not be any such documents openly displayed on the table or on the computer if the room is left empty. Behind R&D locked doors is an option, or screens covering product development from bypassers’ eyes. There are also a number of computerized devices for handling trade secrets, such as platforms for publishing of joint documents, key-locked systems etc

6) Include a secrecy clause in every agreement!
Employment contracts, consultancy agreements, sub-contractor confirmations, option and licensing agreements etc should all comprise a clause on secrecy where, if so required, some business information classified as Trade Secrets can be specified.

7) File a patent application
This is the most bullet proof way to handle Trade Secrets if they are to be exposed to the public at a time decided by the company. If, however, they represent an equivalent to the Coca Cola recipe, which has to be kept secret for eternity, then please, keep it secret for eternity.

 

By Dan Lindahl

Dan Lindahl is a European Patent Attorney. Dan is MSc (E) and PhD (medicine). Working with international patent prosecution in electronics, digitalization, medical devices and aerospace technology, Trade Secrets is part of his every day work. Dan is a member of SPOF, the Swedish Patent Attorney Association.

 

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