In DB Riley Inc./AB Engineering Corp[iv], the applicant argued that the defendant had acquired the applicant`s trade secrets and had used that information to gain a competitive advantage, despite an existing contractual agreement with the applicant that limited disclosure. [v] The United States District Court in Massachusetts found that the information obtained by the defendant was trade secrets. [vi] Despite this finding, the Tribunal found that the trade secrets were not properly protected by the applicant because the applicant was unable to demonstrate that appropriate measures had been taken to preserve secrecy. [vii] In support of that case, the Tribunal found that the applicant had obtained a temporary confidentiality agreement to preserve his trade secrets. As a result, the applicant was unable to demonstrate „perpetual vigilance“ over his business secrets. [viii] It is quite simple — if the information has economic value because it is not known to all (or is easily identifiable by appropriate means) and the owner of that information, in the present circumstances, makes a reasonable effort to keep it secret, you have a trade secret. Of course, any jurisdiction may contain a version of UTSA or otherwise rely on the common law interpretation, but the point here is that trade secrets require greater care. But the obvious thing about this definition is that trade secrets enjoy such status because they are kept secret. Once revealed, these trade secrets lose more than their splendor – they lose their status as trade secrets. This means that if you want exclusive ownership of your innovation, it can`t remain a secret. This may be correct as long as your patent is in effect, but the patents are not permanent.
A non-invitation agreement in principle prevents the other party from ripping off your employees and customers. However, the NDA may be considered inconclusive if it is considered a trade restriction. A trade restriction occurs when the future freedom of the federal government to engage in commercial activities with other persons or businesses that are not part of the contract is restricted. [i] Contrary to public order, a commercial restriction is considered prima facie void and can only be rebutted by evidence that the restriction is appropriate. The proof of adequacy rests with the federal government, which must demonstrate that the deference is in the interest of the public and the contracting parties. The federal issuer must also demonstrate that the deduction is not excessive or broader than necessary to protect their interests. [ii] The common use of expiry data in the NDA limits the scope of the restriction and therefore provides some protection against the finding that an NDA is unsealed because it constitutes a commercial restriction. As we already know, trade secrets can last forever if certain qualifications are fulfilled, including appropriate measures to protect business secrecy.
Have you ever wondered how many companies like these have managed to keep their recipes secret for so long? Secrets are an important factor in business success. Look at companies like Coca-Cola and KFC, based on a formula and based on prescriptions, that have remained secret for 100 years. However, this should not apply when it comes to trade secrets.