Trade secrets exist to help businesses protect vital pieces of information that can keep them profitable and without significant competition. However, many business owners aren’t sure exactly what qualifies as a trade secret or how to protect those secrets.
In the realm of software development, can your software itself be a kind of trade secret?
Working With Trade Secret Experts
If you’re concerned about your intellectual property or if you’re just interested in protecting your business as much as possible, it’s a good idea to work with trade secret experts. Trade secret experts are typically familiar with both the legal and practical side of trade secrets, and they typically have experience in one particular industry. For example, if you work in the software industry, you might look for a trade secret expert with software experience.
Your trade secret expert can help you in many ways, from identifying potential trade secrets to calculating the value of those trade secrets and helping you investigate possible infringers.
It’s also a good idea to work with an intellectual property attorney who has the expertise and credentials necessary to provide you with legal advice on the topic. They may also be able to connect you with other resources who can help you identify, protect, and enforce your software trade secrets.
The Basics of Trade Secrets
To qualify as a trade secret, a piece of information or process must be associated with:
· Economic value. For starters, the trade secret needs to have some kind of economic value. Your business needs to have a measurable, objective advantage in maintaining this trade secret. For example, if you have a secret recipe for a branded soft drink, keeping that recipe secret can limit competition, aiding you in netting more sales.
· Limited knowledge. A trade secret must also be a secret in the sense that only a limited number of people have the knowledge. A piece of information isn’t going to qualify as a trade secret if it’s obvious or widely known.
· Protected by reasonable steps. Businesses and individuals are also required to guard their trade secrets via reasonable measures. This is a bit of a vague term, but the point is clear: you need to make at least some effort to keep your trade secrets a secret. Otherwise, you won’t be able to enforce them.
Accordingly, certain elements of your software or the entire software itself could hypothetically qualify as a trade secret. If you have a novel approach that gives you a competitive edge and you manage to keep it a protected secret, you could be entitled to certain legal protections.
Protecting Your Trade Secrets
So what are the best ways to protect your trade secrets?
· Identify and understand your trade secrets. The first part of the process is to identify and understand your trade secrets. If you don’t know what qualifies as a trade secret in your software, you won’t have a good defense in a court of law.
· Limit and control access. Next, make sure you limit and control access to the information associated with your trade secret. Remember, if everyone knows about it, it’s not going to be a secret anymore. Make sure only the most trustworthy people in your organization know this information.
· Use confidentiality agreements. You can add a layer of protection by having everyone with exposure to this information sign confidentiality agreements, like non-disclosure agreements (NDAs). This way, if they leak information intentionally or inadvertently, you’ll have legal recourse.
· Train and educate your staff. Many trade secrets are leaked simply due to unwitting employees working and talking in a sloppy way. Accordingly, you should make an effort to train and educate your staff. Make sure even ground-level employees know how important it is to keep things under hat.
· Improve physical security. Invest in the physical security of your organization, especially if your trade secrets are directly accessible via hard drives or locally stored files. Consider hiring security guards and making sure no one can enter the premises without the proper credentials.
· Improve cybersecurity. Even basic cybersecurity practices can provide a great deal of protection to your software. Make sure you and your team are investing in the right tools and resources and following best practices.
· Scout for potential infringement. Proactively look for potential instances of infringement. You’ll likely have legal recourse if someone steals or copies your trade secret illegally.
The concept of trade secrets is a somewhat complicated one, and one that requires expertise in intellectual property law to fully understand. That said, software and elements of software can qualify as trade secrets. If you want to keep them protected, work with lawyers and trade secret experts to make sure you’re following the most crucial steps.
