A trade secret is not a category of information. It is a claim about specific information, and it has to be specified, protected, and shown to have been taken.
Start a conversation with the IP Concierge, already scoped to trade secrets. Select a subject area to prompt it, or describe the matter directly.
Trade secret disputes look, at the outset, like the most intuitive kind of intellectual property case: somebody left and took something. They then turn on three questions that are far less intuitive. What precisely is the information said to be secret, described with enough particularity that a court and a defendant can tell what is in and what is out? Did it actually derive value from being secret, and did the owner take reasonable steps to keep it that way? And is there evidence the defendant acquired, disclosed or used it, as opposed to competing effectively with general skill and knowledge that any employee is entitled to carry to a new job? Cases collapse at the first question more often than at the third.
They run in order, and the first is where most matters are actually decided.
The question that ends more trade secret cases than any defense — and the one plaintiffs most want to defer.
investigateNot perfect security. Evidence that the owner actually treated the information as a secret.
investigateWhat the devices and logs actually show — and how quickly ordinary IT process destroys it.
investigateWhat the technical and forensic work involves, and what each part is for.
Broadly, information that derives independent economic value from not being generally known or readily ascertainable, and that is the subject of reasonable efforts to keep it secret. The category is wide — formulas, source code, processes, customer and pricing data, negative know-how about what does not work — but the two conditions do real filtering. Information the industry already knows fails the first. Information the owner left on an open share fails the second, however valuable it is.
Because everything else is measured against it. Until the secret is specified, a defendant cannot mount a defense, an expert cannot compare anything, and a court cannot draw an injunction. Several jurisdictions require identification with reasonable particularity before discovery even opens. Plaintiffs often resist, wanting to see the defendant’s materials first and then define the secret to match, and courts have become notably unsympathetic to that sequence.
Generally not. Reverse engineering a lawfully obtained product and independent development are both recognized as proper means of acquiring information, and neither is misappropriation. That is one of the fundamental trade-offs of trade secret protection as against a patent: the right is against improper acquisition and breach of duty, not against the information itself. A defendant with a documented, contemporaneous development record is in a strong position for exactly this reason.
This is where trade secret law and employee mobility collide, and the answer varies considerably by jurisdiction. General skill, knowledge and experience travel with the employee; specific protected information does not. Some states will restrain a role where use is treated as effectively unavoidable, and others reject that reasoning outright and are hostile to restraints on mobility generally. It is a legal question with a heavy factual component, and it is one to put to counsel in the relevant state early.
Preserve, before anything else. Pull the departing employee’s laptop and phone out of the reimaging queue and have them forensically imaged; suspend the automatic deletion of their mailbox and accounts; and capture badge, VPN and file access logs for the preceding months while they still exist. Ordinary IT hygiene destroys this evidence within weeks as a matter of routine, with nobody doing anything wrong. Everything else — whether to send a letter, whether to sue — can wait a fortnight. This cannot.
Describe what left and how. The Institute will help you see what the analysis needs.