The attorneys at Thomas M. Lancia assist businesses who are concerned about the protection of their trade secrets. We also represent clients who have had their trade secrets stolen or are involved in related litigation. We have years of experience dealing with a wide range of of intellectual property matters, including trade secrets which allows us to effectively address client’s business objectives.
What is trade secret?
A trade secret is defined as any confidential information that gives a business an economic advantage. Many things can qualify as a trade secret including, but not limited to, manufacturing processes, business practices, formulas, designs or patterns.
The elements of a trade secret depend upon the state jurisdiction in which you are pursuing a claim. But, all trade secret claims include proving the following elements:
1. The information is the type which trade secret was meant to protect and is generally unknown to the public;
2. The information gives the business an economic advantage over competitors;
3. The business reasonably attempted to keep the information confidential and took reasonable precautions to protect it; and
4. The information was acquired through misconduct or was misappropriated.
Protecting Trade Secrets
Trade secrets can be protected in any number of ways. Our attorneys are experienced in advising clients on the best way to protect their trade secrets. Formal requirements are not always required. It is most important that the business makes it generally known that this information is confidential. The business should share this information with as few people as possible. Our attorneys also advise clients if formalities are in their best interests. Our firm regularly represents clients in the drafting and use of confidentiality agreements and securing patents if necessary.
Even if a business takes the necessary precautions and uses formal methods of protecting their trade secret, they can still be discovered. In fact, discovering a trade secret is not always illegal. For example, many businesses use the legal practice of reverse engineering (analyzing the structure and function of an item) to discover trade secrets. But, when trade secrets are discovered through improper means or the breach of confidentiality a tort has been committed. For example, industrial espionage (spying on a business) is illegal and the wrongdoer can be liable.
If improper means or the breach of confidentiality is used to discover a trade secret, the wrongdoer can be subject to liability in a civil court and sometimes be found guilty of a Federal crime. The business that possessed of the trade secret could sue for an injunction to stop the taker from using the trade secret. The business could also sue for damages including all the profits made by using the trade secret inappropriately.
Trade Secret Laws
Approximately 40 states and the District of Columbia have adopted the Uniform Trade Secret Act which allows for consistent trade secret legislation in most parts of the country. In addition, the federal Economic Espionage Act makes it illegal to use improper means to obtain a trade secret and to misappropriate a trade secret for the benefit of a foreign country.
If you are trying to protect a trade secret or one has been stolen from your business, contact Thomas M. Lancia PPLC at (212)964-3157 to discuss your case.