Apart from the time and duration of the agreement, there are a few additional provisions that should be included in NAs to help businesses better protect themselves. Some of them contain the following: So apart from the measures to protect your business secret, what else can you do? A non-compete agreement is a contract that prevents the other party from competing with you later for a certain period of time and in a given geographic location. This type of legal arrangement can be used to protect ordinary confidential information or trade secrets. To avoid confusion about what is confidential information and what is a trade secret, you should provide a definition of what a trade secret is and what confidential information is. As we already know, trade secrets can last forever if certain qualifications are fulfilled, including appropriate measures to protect business secrecy. The second step is to define a separate protection period for confidential information and trade secrets. The use of a separate and different duration of protection for trade secrets (unlike ordinary confidential information) provides for indeterminate protection of trade secrets while reducing the risk that the NDA will be considered an inappropriate trade restriction. Here`s an example of a language that could be included in an NDA: This means that if you want exclusive ownership over 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. To protect these secrets, there are several common methods used by companies to protect these secrets. These include the use of a patent, a non-competing agreement, a non-invitation agreement and a confidentiality agreement (NDA).
As you already know, the advantage of a patent is that it gives you a property right for a while, but in return you have to share your secret with the world. Given the precedent created by the examples of case law cited above, the way is for companies to find clear lines that distinguish between “regular” confidential information and trade secrets, especially in the NDAs. The current implementation of a single system for classifying all information as confidential may be beneficial, but its applicability would be extended if companies chose to include a separate section that would simply remove “trade secrets” from other information. The use of language in the sense of “trade secret or not” would complement the definition of “confidential information” in confidentiality agreements. On the other hand, two recent and egregious federal court decisions in California have concluded that the expiration of an NOA does not necessarily precludes a claim under the DTSA or a state trade secrets act because of an alleged misappropriation that occurred thereafter. Instead, the expiration of the NDA is merely a fact that the jury can consider in order to determine whether or not the owner adequately protected his business secrets at the time of the alleged embezzlement. Alta Devices, Inc. v.
LG Electronics, Inc., No. 18-CV-00404-LHK, 2018 WL 5045429, at 7 (N.D. Cal. 17 Oct 2018); BladeRoom Grp. Ltd. v. Facebook, Inc., No. 5:15-cv-01370-EJD, 2018 WL 1569703, at No. 7 (N.D. Cal. March 30, 2018).
All you have to do is reveal secrets when you file your patent application, but not while the patent is in effect. Once your patent application has been approved, you can develop other proprietary objects based on your invention without disclosing them, and you can keep them as trade secrets. In Canada, the question of whether an NOA could constitute an unenforceable trade restriction was considered in the context of labour law, but the question of whether an NOA could be considered a restriction on transactions between two or more companies was very little debated.