Trade Secrets are intellectual property assets the values of which are derived from their awareness being exclusive to their owners (i.e., they are secret). Unlike patent, copyright, and trademark assets, trade secrets are not inherently protected at the federal level (absent criminal provisions in 18 U.S.C. ss 1831, 1832, and supplementary remedies under the Defend Trade Secrets Act (DTSA)) and are instead protected, usually, by various adoptions of the Uniform Trade Secrets Act. In Illinois, for example, trade secrets are protectable under the Illinois Trade Secrets Act (“ITSA”).
Trade secret protection may apply to that which also may be patentable and includes non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, or lists of actual or potential customers or suppliers which are valuable as a result of their being secret and are subject to reasonable security measures. Trade secrets are not infringed; rather, they are “misappropriated” which generally involves the improper acquisition and disclosure of the trade secret information.
Trade secrets do not have a set lifespan (unlike patents) and pragmatically last so long as the owner is successful in keeping them secret. While customer lists are expressly included in the definition of what may be protectable as a trade secret, mere collections of publicly available information may not be protectable. Thus, considerations should include how and in what form such information is maintained along with maintaining security protocols.
We have assisted businesses with identifying trade secret protectable assets, advising them on how best to maintain the security of those assets, and enforcing the rights under both the ITSA and under contract.