Intellectual Property Law

Trade Secret

A trade secret is an unregistered patent. Since the trade secrets are unregistered, they do not expire.

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Trade Secret Lawyers Melbourne and Essendon

A trade secret is an unregistered patent. Since the trade secrets are unregistered, they do not expire. No disclosure is required in relation to the trade secrets as in the application for registration of a patent for a creation or invention. Trade secrets have general protection under the common law. A trade secret refers to the information that a company intends to keep confidential about a device, method, process, knowledge, or technology against unfair competition.

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How does the court define a trade secret?

The confidential information or practices, a company uses to gain advantage over its competitors in a trade, is called a trade secret. The court applies the test to determine the confidentiality of the information. The court analyses the value of information to the business, the harm company would suffer if the confidential information made public or released to a competitor, the uniqueness of the information, the steps taken and the commitment of the company to maintain secrecy of the information to determine the confidentiality of the information.

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What is Trade Secret law?

Trade Secrets are protected by a bundle of laws under common law such as misuse of confidential information, breach of fiduciary duty, vicarious liability, breach of employment contracts, copyright infringement, breach of the Corporations Act and other statutes.

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Is it better to have ‘trade secret’ instead of having a ‘patent’ to protect the IP?

A ‘trade secret’ does not provide legal protection of IP against a competitor who has independently made a creation or invention a similar device, method, or process. A protection to trade secret can be achieved by making the employees to sign the non-disclosure agreement or a confidentiality statement with non-compete agreement. The non-compete agreement prevents the employees from using the trade secrets elsewhere in that position or otherwise. It is easier to prove infringement of a patent than the breach of confidence. If an employee breaches the confidentiality agreement, it is way harder to establish the breach and thus to protect the trade secret is difficult as compared to defend a registered right under patent.

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How should I protect my trade secrets?

Every employee should have access only to information relevant to her or his role for a period for how long the information is required. You should have a robust system to protect the confidential information of your business engaging a combination of the physical or electronic barriers and staff education. You should hold security checks, leaving interviews when the staff members leave the work by blocking their access to the information. The confidentiality policy should be notified to all the staff members. The material you share with employees should have a mark of copyright to convey the confidentiality to the staff members if you own the copyright of the material. To protect the information of your business or customers, you must conduct privacy impact assessment.

An enforceable non-compete agreement and a disclosure statement must be agreed upon with the employees who are exposed to the confidential information of the business. You must prepare a crisis management plan to deal with any kind of information stealing or asset theft from the business to maintain the culture of information secrecy.

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What should I do if my Trade Secret has been taken?

You should immediately seek legal advice on your prospects of success against the person who took the trade secrets of your company or business. The relief you can seek from a Court is an injunction, delivery up of any of the information, destruction orders to destroy material that cannot be returned, orders that the persons are not to use the information and monetary damages if you establish the respondent took your confidential information. Depending on the claim, you may also be able to obtain additional damages for the Copyright infringement.

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What is the difference between patent and trade secret?

You need a legal protection of patents while you do not need a legal protection for ‘trade secrets’. You can bring an action for an infringement of a granted patent but no action to protect a ‘trade secret’ except of a common law protection. Patent protection is granted is a right by registration while ‘trade secrets’ are unregistered. Patents expire while ‘trade secrets’ do not expire. Businesses have to make an effective IP strategy whether to get a patent of their invention or creation or go to maintain ‘trade secret’ for the advantage over competitors.