Tue Mar 10 20:41:42 PDT 2015
Content control: How is intellectual property protected?
[Trade secrets / Patents / Copyrights / Trademarks / Other IP]
are protected by [Limiting it to very specific identified items /
Marking it properly / Segregating it from other content / Controlling
who has access to it / Limiting disclosure to identified parties /
Having relevant contracts in place with all accessing parties / Not
disclosing it / Filing timely legal papers / Actively applying it /
Actively protecting it / Explicitly inventorying it / Tracking actual
access / Tracking and following jurisdictional requirements / Practices
commensurate with its business utility]
[Trade secrets] are protected by [Limiting it to very
specific identified items / Marking it properly / Segregating it from
other content / Controlling who has access to it / Limiting disclosure
to identified parties / Having relevant contracts in place with all
accessing parties / Not disclosing it / Actively protecting it /
Explicitly inventorying it / Tracking actual access / Tracking and
following jurisdictional requirements]
While state-by-state and country-by-country laws
vary, trade secrets are protected only by the holder preventing
unauthorized parties from gaining access to it. In order to prove that
trade secrets have been violated, and thus be compensated for their
release, it is generally necessary to prove that an authorized party
improperly disclosed those secrets, that they were otherwise properly
protected, and that they were in fact legitimate trade
secrets. Generally, this means:
- They must be secret. That is, only a small
number of known and authorized individuals may know them. If someone
else knows them independently of the moment they became trade secrets
and identified trade secret communication after that point, they are
not secret. For example, a customer list is almost certainly not a
trade secret, because the customers know who they are, and the
aggregated set of non-trade secrets is not a trade secret.
- They must be valuable. The value must be
very substantial for each piece of trade secret information. For
example, I know what the things in my safe deposit box are, and nobody
else does, but since this has little real value, it is not a trade
secret, even if it might be a secret.
- They must not be obvious or generally
known. If someone independently stumbles across the same thing and
reveals it, if it was published somewhere at some time, or if it is
patented, it cannot be a trade secret.
For legal protection to apply to trade secrets, that is, in order
to win a law suit if someone steals them, there has to be effective
protection in place. Generally, this includes things like:
- Separate trade secrets from non-trade
secrets: Don't keep them in the same physical location, not on the
same computer, disk, directory, file cabinet drawer, etc. In the case
of computer systems which can maintain adequate separation, you might
place them in segregated areas, encrypted with different keys, etc.
- Label documents, items, software, files,
etc. containing trade secrets: Typical labels indicate "TRADE
SECRET" and this marking should be present on every page or screen
displaying the document containing the information, as well as on the
outer cover, front and back. "This document contains confidential and
proprietary unpublished information of [entity name]. Do not copy or
- Execute nondisclosure agreements: Anyone
with access must sign such an agreement BEFORE access is granted and
the entity protecting the secrets better have properly signed and
countersigned agreements in hand.
- Use employee manuals and awareness programs to
emphasize trade secret protection: Everybody with potential to
access, intentionally or otherwise, should have adequate notice and
awareness. This typically includes initial briefings, written notices,
exit interviews, etc.
- Use physical security controls:
Unauthorized parties should not be allowed to be in physical proximity
to trade secrets, and physical barriers to entry are an important part
- Don't disclose in any form: Disclosure in
any form may constitute loss of trade secret value. It doesn't matter
whether it is spoken, written, electronic, sign language, or anything
else. Disclosure is disclosure.
- Log all accesses: Every access to the
physical area or specific information should produce a log identifying
who accessed what trade secret and when. These should be timely,
reliable, and unalterable whenever possible.
- Some other typical steps: Each copy should
be identified and numbered/marked with each access associated with
such a copy tracked and limited to the party authorized to that
copy. Controls over the entire lifecycle from initial creation to
final disposition should be meticulously maintained. Inventory should
be kept and accurately maintained. Generally, the protection program
as a whole should be at the Defined level or higher.
- Conduct periodic reviews: A periodic audit
process should verify that all measures to protect trade secrets are
in place and operating properly.
[Patents] are protected by [Marking it
properly / Not disclosing it prior to filing / Filing timely legal
papers / Tracking and following jurisdictional requirements]
Unlike trade secrets, the protection of which is all
in the hands of the holder, patents, once files, can generally be
disclosed without loss of rights. Confidentiality only applied prior
to filing, and then there are different specific limitations in
different time frames and jurisdictions.
- Marking Pat. Pend. for pending patents, and
Pat. along with the patent numbers protects patented items in terms of
adequate notice to others. Filing timely legal documents is necessary,
and there is the "race to the patent office" effect in that the first
to file generally wins the patent.
[Copyrights] are protected by [Marking it
properly / Explicitly inventorying it] Generally, anything reduced
to tangible form is copyrighted de-facto. Additional protection may be
attained by sending a copy to the copyright office, having adequate
proof of the date of the creation of the document, etc. But copyright
is a relatively weak protection, protecting the specifics of the
material and not the ideas, methods, processes, or concepts.
[Trademarks] are protected by [Limiting it
to very specific identified items / Marking it properly / Actively
applying it / Actively protecting it / Explicitly inventorying it]
Trademarks and similar markings are typically in the form of shapes,
colors, markings, etc. that are unique at the time of inception and
protected through their lifecycle by aggressively pursuing those who
use those markings in the legal system.
[Other IP] are protected by [Practices
commensurate with its business utility] In general, that's what
the standard of practice is about.
Copyright(c) Fred Cohen, 1988-2015 - All Rights Reserved