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If it’s a Trade Secret, Define “Reasonable Effort”

Technology Escrow

If it’s a Trade Secret, Define “Reasonable Effort”

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I’m sure at some point in your life you had a “million-dollar” idea … how can you protect your trade secret?

I’m sure at some point in your life you had a “million-dollar” idea – an idea so ingenious that you can picture exactly what it looks like, how it works, and the benefits it would bring to the world. For the last eight years, I’ve had the privilege of working with a wide array of innovative people. These individuals not only have ideas, but also the ability to bring their ideas to life. This post will discuss how innovators and developers can protect their intellectual property in the form of trade secrets, and how a date- and time-stamped audit trail of their IP development can be protected by a trusted third-party.

Four Methods of IP Protection

When it comes to protecting intellectual property, you have four basic methods. (Thanks to Gulick Law for these laypeople’s definitions.)

  • Patents – Patents protect new, useful, and non-obvious inventions (ideas!). An invention can be a device, structure, process, machinery, etc.
  • Trademarks – Trademarks protect source identifications, usually for brands, slogans, logos, or designs (sometimes even scents or colors). Trademark protection may extend perpetually.
  • Copyrights – Copyrights protect original textual works and visual or artistic expressions.
  • Trade Secrets – Trade secrets protect valuable secret information like ideas that must be kept confidential. Others to whom they are disclosed to must also keep them confidential. Similar to trademarks, trade secret protection may extend perpetually.

Which one is Right for Me?

This article from BVR goes more into depth about each method of IP protection and its advantages and disadvantages. For example, patents are expensive to acquire and the process for establishing a patent is pretty intense. Some of the steps include:

  • Determine if your invention is patentable
  • Figure out what kind of patent you need
  • Find a patent attorney to help prepare the initial application
  • Submit the application
  • Work with an examiner
  • Receive approval for the patent
  • Maintain the patent (20 Year Life Cycle)

When you consider the total amount of fees for a patent, including legal fees, it ranges between $8,000 -$15,000+.

Consider Trade Secrets

On the other hand, it is typically easier and less expensive to create protection for trade secrets. Also, unlike the other forms of IP protection, they don’t require a formal registration or approval process with a regulatory entity. Trade secrets can cover any type of design, information, or other knowledge that may also otherwise be protected with other IP forms. In fact, it is quite common that companies protect other IP types with trade secrets prior to receiving formal government protection.

Trade secrets are also versatile. A trade secret can be considered a number of different things; such as inventions, ideas, business plans, customer lists, financials, projections and even the results from trial and error. In a nutshell, “any valuable commercial information that provides a business with an advantage over competitors who do not have that information.”

According to the Trade Secrets Act, in order for an individual to protect their trade secrets, they must demonstrate “efforts that are reasonable under the circumstances to maintain its secrecy.” But, how do you protect information that requires other people’s assistance (employees, subcontractors, etc.)?

IPDPA Provides Value for Trade Secret Protection

An Intellectual Property Development Protection Agreement (IPDPA) from Iron Mountain is a safe and cost-effective way of protecting sensitive information. All of the information submitted into escrow is completely protected within Iron Mountain’s secure environment for data transfer, data storage, and account management. This comprehensive security framework includes the following attributes:

  • Deposit security – Tracks chain of custody from the time of receipt to the release of the deposit. Vault administrators code and track a physical media deposit upon delivery to a vault. Electronic media deposits are encrypted and transferred to an Iron Mountain vault using secure transfer protocols.
  • Storage security – Prevents unauthorized access to physical and electronic vaults. Iron Mountain stores all escrow media and documents in vaults at secure, offsite facilities, which include uninterruptible power supplies, noncombustible construction, gaseous fire protection, and sophisticated access control security systems.
  • Facility security – Adheres to stringent physical security practices which restrict access to the materials.

Since Iron Mountain dates and timestamps all materials deposited into escrow, an escrow account creates an audit trail for the development of a solution and provides independent validation of the ownership of the related intellectual property. As an escrow provider, Iron Mountain has no vested interest in defending one party over another and, therefore, has the trust of the courts to vouch for the existence and ownership of the intellectual property.

Bottom line, this type of agreement can:

  • Give meaning to Non-disclosure Agreements
  • Control Physical & Electronic Access to your IP
  • Identify assets to mitigate risk
  • Protect your IP against Complex Supply Chains
  • Provide an online portal to monitor the activity of the account

It’s not easy bringing your brainchild to life but protecting your ideas (in the form of trade secrets) can be. How’s that for “reasonable efforts”?

“The most certain way to succeed is always to try just one more time.”
Thomas A. Edison

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