Trade secrets, a creature of state law, can be a powerful form of intellectual property. Under the Uniform Trade Secrets Act, which most states have adopted, a trade secret is information that is not generally known or readily ascertainable by others, that derives value from its secrecy, and that is the subject of reasonable efforts to maintain secrecy. Trade secrets require no formal filings, registrations, or filing fees. They can encompass virtually any kind of information in any format: business plans, customer lists, manufacturing processes, formulas, computer source code and object code, and other material. And they can potentially last forever. Perhaps the most famous trade secret — the formula for Coca-Cola® soft drinks — has been protected for more than 100 years. But while trade secrets can last for decades, they can also be lost in an instant — if trade secrets are disclosed to a potential customer without contractual protections, if former employees are allowed to take trade secrets with them to a new employer, or if there are inadequate safeguards in the physical or virtual workplace.
Advice on trade secrets is a key component of the intellectual property services that Hunton & Williams provides. Our experience in trade secrets law — and in the practical application of trade secrets principles across various industries — allows us to assist clients, from start-ups to multinationals, in identifying their trade secrets; in establishing trade secret protection programs; in developing employee agreements, independent contractor agreements, confidentiality agreements, and other critical documents; and in enforcing their trade secrets against misappropriation. We understand that trade secret protection may not be appropriate for certain of our clients’ information, such as information that competitors know or can learn through reverse engineering. We also recognize that other forms of intellectual property protection can be complementary to — or incompatible with — trade secret protection. For example, trade secrets disclosed in patent applications or in copyright registrations (without redaction) lose their trade secret status. Thus, our patent and copyright practitioners advise clients on the pros and cons of protecting their information in various ways, such as through patents, copyright registrations, trade secrets, or some combination thereof. Where appropriate, we work with Hunton & Williams’ labor lawyers to address trade secrets issues that arise in the workplace, such as employee use of the Internet, social media, and other new media. Finally, we we work with our transactional lawyers to address trade secret issues relating to mergers, asset acquisitions, and other transactions.
Trade Secret Protection Programs
We counsel our clients on the importance of recognizing potential trade secrets early, before they are inadvertently lost or compromised. We develop holistic trade secret protection programs, often as components of broader intellectual property protection programs. Our trade secrets programs cover elements such as physical safeguards, premises controls, computer use policies, visitor policies, document management, marketing practices, and exit interviews for departing personnel. We tailor these programs to the needs of individual clients. And we provide training and follow-up to ensure that the trade secrets programs are implemented and maintained effectively.
Agreements to Protect Trade Secrets and Confidential Information
We structure, draft, and negotiate a variety of agreements to protect our clients’ trade secrets and confidential information. These include confidentiality agreements for key employees and independent contractors, and also confidentiality provisions in broader employee and contractor agreements. We also develop non-disclosure agreements for a range of transactions in which trade secrets may be disclosed or developed. These include NDAs with actual and prospective customers, vendors, suppliers, licensors, licensees, and joint venturers. Using our subject matter and industry experience, we make sure that our clients’ agreements properly identify the relevant trade secrets and potential trade secrets, and also provide effective protection for those items.
Trade Secrets Enforcement and Litigation
We have helped numerous clients in preventing, containing, and obtaining redress for the threatened or actual misappropriation of their trade secrets and confidential information. Where feasible, we protect our clients’ trade secrets through demand letters and negotiation. Where necessary, we bring trade secret litigation in the federal or state courts. Our experience in trade secrets law and the strength of our litigation resources help us position our clients to succeed in such litigation, as both plaintiffs and defendants. We recognize the importance of identifying and defining the trade secrets at issue in the litigation while continuing to maintain their secrecy. We use skilled investigators to develop critical facts. And we use subject matter and damages experts to help our clients put their best case forward in the liability and damages phases of the case. As a result, in many cases we obtain quick relief for our clients, including temporary restraining orders and preliminary injunctions. Where appropriate, we also seek money damages and the enhancement of such damages under various states’ statutes. Employing our trade secrets skills and assets, we have obtained a number of favorable results for trade secret litigation clients. For example, we successfully defended a telecommunications equipment manufacturer in a federal court action brought by a competitor alleging misappropriation of trade secrets and patent infringement. We also helped a regional service provider in the coordinated enforcement of covenants-not-to-compete in several states.