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Protecting trade secrets and know how

Protecting trade secrets and know how

Types of IP

Protecting trade secrets and know how


Unlike other IP rights whose value and protection arise from legislation, trade secrets and know how can only be protected by secrecy.

You therefore need to be proactive and diligent to protect your trade secrets and know how.

Below are some suggestions that you can consider implementing:

  1. You should not make a disclosure of your trade secrets and know how to anyone without:      

(a)  considering the purpose of the disclosure (it could be for example to explore a business opportunity)

(b)  considering the extent of the disclosure that you will need to make for that purpose, to ensure that you disclose what you need to disclose, without disclosing more

(c)  entering into a Confidentiality Agreement or a Non Disclosure Agreement

(d)  ensuring that the Confidentiality Agreement or Non Disclosure Agreement restricts the recipient’s use of your trade secrets and know how to the use that you specifically allow, and prohibits any other use without your permission

(e)  ensuring that the Confidentiality Agreement or Non Disclosure Agreement requires the recipient to keep your trade secrets and know how secret and confidential, and to not disclose your trade secrets and know how to anyone else without your written permission

  1. You should not make a disclosure of your trade secrets and know how to an employee without ensuring that there is a written employment agreement which requires your employee to:

(a)  keep your trade secrets and know how secret and confidential, and to not disclose your trade secrets and know how to anyone without your written permission

(b)  not use your trade secrets and know how other than for the employment purposes

  1. Similarly you should not make a disclosure of your trade secrets and know how to a contractor that you engage without ensuring that there is a written contracting agreement which requires the contractor to:

(a)  keep your trade secrets and know how secret and confidential, and to not disclose your trade secrets and know how to anyone without your written permission

(b)  not use your trade secrets and know how other than for the purposes of the contracting engagement

  1. You should consider implementing a “need to know” policy

Not every employee needs to know all your trade secrets and know how. Most employees only need to know those trade secrets and know how that are relevant to their specific employment position. You can therefore minimise the risk of employees disclosing or misusing your trade secrets and know how by ensuring that each employee is aware only of the specific trade secrets and know how that the employee needs to know to be able to do the job the employee has.

You can also have a similar need to know policy in relation to your contractors.

  1. You should consider the security of your confidential information, trade secrets and know how

If there are physical copies, are they locked away and secure, and is their accessibility confined to the specific people who need access to them? If they are maintained electronically, can anyone in the organisation access them, or is access confined to only those staff whose duties require them to know the trade secrets or know how?

  1. You should consider the visitors that come to your premises

Can they learn about your trade secrets and know how by observation, or by speaking with your employees? Should visitors sign a confidentiality agreement? Should their access to your premises be restricted? Should visitors be escorted? Should a register of visitors be maintained?