Essentially all businesses, no matter the size, has valuable proprietary information that provides that business with a competitive advantage in its industry. This type of information is commonly known as a trade secret. A trade secret can be a technique, procedure, marketing strategies, customer lists or formula.
An attorney with experience in trade secret protection can prevent the cost and complexity of litigation and provide your business with protection immediately. This article will detail the ways a trade secret attorney can protect your business assets and discuss in detail the exact role an attorney would fill.
TRADE SECRET CONTRACTS
Businesses routinely participate in commercial transactions that incorporate the sharing, receiving and exchanging of confidential information with employees, clients, investors, third-party vendors and other parties. One of the main duties of a trade secret attorney is drafting and executing contracts that will protect your business’ proprietary information prior to any disclosures.
Agreements protecting the confidentiality of your trade secrets can be implemented as a free-standing agreement (also known as a nondisclosure agreement or NDA) or be implemented as a confidentiality clause within an agreement covering a transaction. The following will detail the types of contracts trade secret attorneys find vital to protecting a business’ trade secrets.
OPERATING AGREEMENT
An attorney can help protect the confidentiality of your business’ trade secrets at the time your company is formed. An attorney can draft an operating agreement (also known as a company agreement) that includes a confidentiality provision. The confidentiality provision functions to protect information regarding your business affairs and its financial condition, which members and managers commonly receive.
EMPLOYEE CONFIDENTIALITY AND PROPRIETARY RIGHTS AGREEMENT
It is important for businesses to require a confidentiality and proprietary rights agreement to be signed by all employees as a condition of employment.
This agreement is your employees’ written promise to follow all company policies regarding the confidentiality of your business’ trade secrets. Within this document, your attorney can include what your company considers confidential information, security policies, and all consequences that will be implemented.
EMPLOYEE NON-COMPETE AGREEMENT
An employee’s non-compete agreement is a promise by an employee to not work for a directly competing business for a reasonable time in a specific geographic area. A non-compete agreement ensures that competitors will not have access or use your business’ proprietary information you have disclosed to your former employee for that specific time period.
EMPLOYMENT AGREEMENTS
Employment agreements are binding contracts that set out the responsibilities of an employee or third-party service providers. The agreement can include provisions defining the obligation of confidentiality and duty to not compete with your business. It is advised that every employee sign an agreement prior to the commencement of their employment to clearly define their ongoing obligations of confidentiality to your company.
Types of Employment Agreements:
- Full time Employment Agreement
- Independent Contractor Agreement
- Temporary Employment Agreement
- Consultant Agreement
- Service Agreements
The terms of an employment agreement must be tailored to the specific position’s duties and access to your business’ trade secrets. This is a key tool for protecting your business’ trade secrets and preventing any departing employees from using your trade secrets for their benefit or the benefit of their new employers.
MERGERS AND ACQUISITION AGREEMENTS
When a business is considering a merger or sale of its company, a confidentiality agreement should be implemented. An attorney can draft an agreement to protect the disclosing party by specifying that the disclosed proprietary information must remain confidential and not used or disclosed except for the purpose of evaluating a possible acquisition with the disclosing party.
IMPLEMENTING AND MAINTAINING PROPER PROCEDURE
The implementation of proper policies and procedures are key to protecting your company’s trade secrets. Effective information and data security depends on developing comprehensive policies and procedures and applying them uniformly in your business. This section will focus on the documents designed to accomplish those goals.
EMPLOYEE HANDBOOK
Your company handbook communicates to employees your expectations and sets out your company’s policies. By having an attorney draft this handbook, you can ensure your company’s policies are clearly and consistently communicated. It also allows you to receive affirmative acknowledgment that each employee is consenting to follow these policies. The handbook will define the obligations of confidentiality and discuss the repercussions for any violations.
PHYSICAL AND ELECTRONIC SECURITY POLICIES
Comprehensive physical and electronic security policies are essential to the protection of proprietary information. An attorney can implement and update security policies that govern employees’ appropriate use of company devices and ensure the acknowledgement of those procedures by employees.
SOCIAL MEDIA
The lawyer can also help set up standards that the company requires for social media use. This use might include the limitation of their speech, moral standards, and more. The policy should also have any consequences if they fail to maintain the standards.
TRADE SECRET LITIGATION
Finally, a trade secret attorney can help you when a trade secret is misappropriated by another by serving cease and desist letters, conducting prelitigation negotiations and filing a suit to seek damages and prevent further use of your trade secrets.
CEASE AND DESIST LETTER
An attorney can serve a cease-and-desist letter to an unauthorized party to provide notice of an unauthorized use and prevent any further use of your company’s trade secrets. An attorney would write these letters, deliver them, and follow through.
LITIGATION
If the unauthorized party is unwilling to stop misappropriating your trade secrets, an attorney will file a suit to seek all equitable damages and defend your rights. An attorney can seek immediate injunction to prevent the unauthorized party from any further use and limit any additional damages to your business.
GET A TRADE SECRET LAWYER TODAY
If you are a business owner, consult a trade secret lawyer today to help will all your security procedures, drafting confidentiality agreements, or defending your trade secrets in litigation. Get professional help to protect your proprietary information from misuse and to promote the continued success of your enterprise.
