Trade Secrets and Confidential Information: Legal Advice

Trade Secrets Protection

• Protect technology, inventions and ideas before disclosure
• Set up your business to protect trade secrets and confidential information in a reliable way
• Have the right contracts and policies in place
• Retain control of confidential information

Confidential Information

These days, vast amounts of data are stored in electronic form in cloud storage facilities, file hosting services, data warehouses and mobile devices. 

It’s more easily transferred than ever: sensitive information can be made available almost instantly to any location on the planet.

There’s no question companies need to be on top of data security from a technical perspective and from a legal standpoint.

It's one of the core responsibilities for directors, employees and those which control access to confidential data and documents.

Confidential Information Protection

Problems can come about when a business isn’t in a position to show that it treats information, data and as it should to preserve confidentiality.

We help businesses get to a legal level where:

• they have the right contracts in place with suppliers and partners
• partners trust that the business has adopted data security with purpose, and know what you’re doing

Protecting proprietary and confidential information involves a series of measures.

Confidentiality Agreements

We put together the sort of  legal documentation to set businesses up to be protected in a digital environment.

Having the right contracts in place:

1. research and development contracts: to secure innovative technology, inventions, product development, designs and new processes
2. collaboration agreements: manage disclosure of trade secrets in a way recognised by law with business partners, such as contents of databases, data sets, business plans and strategies
3. managed disclosure agreements: for service companies partnered with the business
4. cross-licensing arrangements: preserve confidentiality in intellectual property licensing arrangements

The sort of contracts which shut the gate on unauthorised disclosures, misuse and keep it for internal use.

Policies and Procedures

When information is sensitive, steps need to be taken by businesses to guard its secrecy. When steps haven’t been taken, companies can have difficulty influencing others that it should - and is - be protected.

Set your business up to use clear known processes on key events:

• onboard staff: set in place clear and unambiguous information to employees and contractors
• manage confidential information: limit usage permissions of third parties handling sensitive information and maintain security
• disembark staff: ensure there’s no question of the status of their leal obligations
• prevent using inbound trade secrets:
  • prevent use of trade secrets owned by other businesses.
  • make sure employees and contractors have a process to handle third party confidential information and trade secrets

The right policies and procedures help:

• guard against internal threats
• cybersecurity procedures and data compliance
• define scope of authority of staff employed at different levels to handle it
• remove excuses (and defences) based on lack of knowledge and indifference

That sort of setup tells others in advance how secret information must be handled and the limits to which the information can be put and used by staff and partners.

Verify Contracts

We check contracts to ensure what is in place is up to the task and:

• ownership: the rights associated with confidential information are owned by the right person
• prevent use: make sure business stop using business information
  Concrete legal steps means that all available means of protection of confidential information and trade secrets can be brought to bear in a situation involving breach of confidential information
• enforcement: when unauthorised people gain access to the data digitally or are passed it by those that shouldn’t be doing so, the company is in a superior position to do what it takes to recover from the situation, and enforce its legal rights.
• use IP rights: broaden intellectual property rights protection to ensure protection is up to scratch

You better protect confidential information and keep information confidential.

Our Experience

We've framed confidentiality arrangements for clients across the spectrum of industries.

More than that, we’re as serious as our clients about protecting trade secrets and safeguarding confidentiality.

Just saying it is sensitive data or documents are confidential is not enough

We:

• review contracts to:
  1. ensure confidentiality protections promised will bite
  2. manage disclosures; and
  3. limit purposes of use in clear terms
• advise on when confidentiality can continue despite disclosure in different situations
• advise on storage and structure of confidential information the law will more readily validate
• prepare licensing agreements to commercialise confidential trade secrets as part of a wider exploitation programmes
• conduct intellectual property audits to rope assets being properly protected by IP rights 
• managed disclosure of confidential information where it has been required by law
• advised on misuse of trade secrets by businesses, law enforcement agencies and the police

Be Ready

Unlawful acquisition, use and disclosure of  information not available to the general public can happen easily.

Recipients may not readily accept that because a business says data or information is confidential, that that is the case. It’s not just a matter of having non-disclosure agreements and confidentiality agreements in place to prevent misuse of private information.

To assert confidentiality:

• companies be ready to show how it fits the legal criterion for protection from the outset. Playing catch-up to justify a breach event after it has happened is not ideal.
• businesses must prove that what they say is confidential is confidential. Legal criterion that must be satisfied.
• it will be for the business to prove that it the data at treated as confidential. Legal criterion must be shown to be satisfied

Confidential Information: Legal Advice

Competitors, suppliers and clientele  need to know that you’re willing to enforce your intellectual property rights when in theft and abuse situations.

Information moves quickly, and so should your lawyers to protect your interests.

Steps do need to be taken to keep it secret.

Should measures to maintain secrecy not be maintained, courts will recognise the confidentiality and it will be lost.

Protect your reputation and business practices when entrusting sensitive information to employees, directors, third party contractors, service providers, and suppliers.

To make a confidential enquiry call us for an introductory chat, contact us and we’ll call you back.

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Companies that aren’t in a position to do so are in a weakened position when it comes to enforcement, and defending itself with regulators.

About Confidential Information

Confidential information is protected by a series of legal duties, for so long as it remains confidential:

• dedicated confidentiality agreements, to allow:
  • use of confidential information for specified purposes and outcomes; and/or
  • disclosures to third parties for those purposes.
• more general confidentiality clauses in contracts in business agreements with partners
• the common law operates to protect confidential information. Duties are imposed by law on:
• directors and senior executives of business
• employees and consultants in employment contracts and consultancy agreements
• business partners
• businesses with third party interests in the company, such as investors

 

Statutory law also imposes

• the Companies Act
• cybersecurity laws and regulations
• privacy legislation, including the Data Protection Act and UK GDPR. Statutory provisions do so to require those handling personal data to do so with appropriate technical and organisational measures, special steps with data transfers outside the UK and legal duties to reporting data breaches within short spaces of time

 

The Trade Secrets Regulation protects trade secrets in the UK.  Together with the general law, it provides that use or disclosure of a trade secret will be unlawful in breach of confidence situations.

 

 

 

Examples of Confidential Information

Confidential information holds the key for competitive advantage and information which maintains established positions in markets.

Information that should be kept confidential includes:

Internal Business Information

• client lists
• pricing charged to specific customers which is not public knowledge
• purchasing preferences of clientele
• business plans and strategies

 

Negotiations and Contracts

• the positions of parties in commercial negotiations
• terms of contractual relationships between service providers customers

R&D

• product development and designs
• research and development
• applied methods and processes developed to manufacture products and deliver processes

Data and Databases

• contents of databases
• processes of manufacturing
• algorithms to implement solutions
• software source code,

and a whole host of others.

Types of Businesses

Trade secrets and confidential information can encapsulate the value of investment, sources of income, capital value and the value of reputation of businesses.

And it cuts across all industries and sectors:

• professional services providers
• scientific and technical activities
• technology, confidential data, and communications
• administrative and support services
• arts and entertainment
• wholesale and retail trade
• real estate activities
• financial services
• digital media
• manufacturing
• online and offline retail

Confidential Information Theft

Using non-disclosure agreements as the sole source of protection of information is a one-dimensional approach.

Confidentiality agreements shouldn’t be seen as the beginning and the end of legal protection. Of itself, it’s inadequate to protect assets of businesses and the confidential assets entrusted to it by others.

Set your business to minimise the threat of theft of confidential information. Having a programme for enforcement greatly enhances prospects of success when you need to do something about it quickly and effectively if it happens to your business.

Disclosure of Confidential Information

If events don’t go they should, we’re highly experienced at gathering together evidence of breaches to make clear cases of breaches and more readily prevent abuse and enforce legal rights, and rectifying the situation.

The outcomes can better place the business in disputes and enhance positions to recover in intellectual property disputes and intellectual property licensing which has gone wrong.

Threats can come from insiders, employees and consultants with access to confidential information. It can be monetised and enhance workforce mobility. 

In a commercial context, there’s [no limit] to what can be protected, provided it’s protected in a way that the law and courts recognise and will validate. If you’re not organised, it’s not as straightforward as you first might believe.

Call us on +44 20 7036 9282