Until the secret is specified, nothing else in the case can be tested — including by the party asserting it.
Start a conversation with the IP Concierge, already scoped to identifying the secret. Pick a starting point, or describe the matter directly.
The single most consequential document in a trade secret case is often the identification: the statement of what, precisely, is claimed to be secret. It is also the one plaintiffs most want to postpone, because specificity is constraining. A broad description covers more but invites the response that it is merely general industry knowledge; a narrow one is defensible but may not reach what the defendant actually did. Several jurisdictions now require reasonable particularity before discovery proceeds, and courts elsewhere have grown impatient with claims framed loosely enough to be redefined once the defendant's materials are in hand. The discipline this imposes is uncomfortable and largely healthy: a claim that cannot be specified is usually a claim that has not been thought through.
The properties that make an identification survive challenge.
Says what is claimed beyond what the industry already knows, rather than describing a general field.
A defendant and an expert can take it and compare it to something. If they cannot, it is not an identification.
Where the secret is a particular combination of public elements, the combination itself must be articulated.
It will be shown to the defendant. Protective orders and tiering matter, and so does not over-disclosing to make a point.
Amendments after seeing the defendant’s documents are permitted in places and read badly nearly everywhere.
A court has to be able to write an order from it that a defendant can actually comply with.
How the identification is developed without giving away the case.
The viability of the claim, and often its lifespan.
Amending the description of the secret after seeing the defendant’s materials is the pattern courts watch for, and it converts a substantive case into an argument about the plaintiff’s good faith. Specify first, from your own documents, and accept the narrowing that follows.
The workable test is whether a competent opposing expert could take the identification and compare it, item by item, against the defendant’s product, code or process. "Our manufacturing process" fails that test. "The specific temperature and dwell profile at the third stage, as recorded in this document" passes it. The standard varies by jurisdiction, but that practical question predicts outcomes well.
That is a recognized and frequently valid form of trade secret, and it carries an extra burden. It is not enough to show the elements exist publicly and that you assembled them; the particular combination, and what makes it valuable and non-obvious to assemble, has to be articulated. Cases fail here when a plaintiff lists ten public facts and asserts secrecy in their aggregation without ever describing the aggregation itself.
It is a real concern and a manageable one. Identifications are made under protective order, often with an attorneys-eyes-only tier restricting who at the defendant may see them. The greater practical risk runs the other way: a plaintiff so protective that the identification is never specific enough to test, which reads to a court as evasion rather than caution and tends to end the claim.
Sometimes, procedurally — and it costs credibility nearly every time. Courts are alert to identifications that evolve to match whatever the defendant’s documents turn out to contain, and a defendant will make that argument forcefully. Where genuinely new information emerges in discovery, an amendment can be justified. Where the amendment simply tracks what was found, it is treated as what it looks like.
Describe what you believe was taken. The Institute will help you see what an identification has to do.