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Intellectual Property Terms

What is meant by "not generally known?"

Information known to someone or known to non-competitors is still capable of being a trade secret. In fact, more than one competing company can claim trade secret rights in the same information independent of one another. Information generally known to one's competitors is not a trade secret.

Trade secret protection can be lost through publishing the secrets. Be careful in disclosing information if secrecy of the information is important. Trade secrets are often lost through disclosures in the absence of a confidentiality agreement.


What is meant by "not readily ascertainable?"

Information that is readily ascertainable is not capable of trade secret protection. The method of manufacturing your product (perhaps a new shoe design) is not a trade secret if someone can learn how to make your product by simply examining the product.


What is "reverse engineering?"

Reverse engineering is the determination of someone else's trade secret information via examination and testing of publicly available information. While the amount of effort needed to reverse engineer can show the information is readily ascertainable, this defense applies even when the reverse engineering is difficult and the information is not readily ascertainable. Reverse engineering is a complete defense, since it shows the information, trade secret or otherwise, was properly acquired from public sources of information.

What can one do if the information has or may become "generally known or readily ascertainable?"

Your company may still protect the information even if the information is or might become generally known or readily ascertainable. Patents (design and utility), copyright, and trademark laws will provide protection for certain information even when the information is generally known or readily ascertainable. Contracts can also provide rights that exceed the bounds of trade secret law. A decision to pursue patent protection instead of trade secret protection is an involved decision that should be discussed with competent counsel. Such a decision, however, turns in part on your likelihood of succeeding on showing the information "is not generally known or readily ascertainable."

About the Author:

N. Paul Friederichs, founder, started practice as a patent attorney in 1992 at a major Minneapolis, Minnesota law firm where he was the highest performing associate. In 1993, he started and developed Friederichs Law Firm with his father. Throughout this time Paul�s experience was heavily weighted toward litigation. He served such clients as Tonka Toys, American Harvest and Boston Medical.

He can be reached at http://www.angenehm.com/

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