The requirement asks whether you behaved like the information was secret. Many owners discover the answer during litigation.
Start a conversation with the IP Concierge, already scoped to reasonable measures. Pick a starting point, or describe the matter directly.
Protection is an element of the claim, not a best practice. Information only qualifies as a trade secret if its owner took reasonable steps, in the circumstances, to keep it secret — and this is where otherwise strong cases quietly fail. The standard is proportionality rather than perfection: a company is not required to have implemented every control available, only measures reasonable given the value of the information and the size and nature of the business. What defeats claims is not a sophisticated attacker but ordinary organizational drift. Agreements that were never signed. A share drive open to everyone because restricting it was inconvenient. Departing employees who were never asked to return anything and never reminded of anything.
The measures assessed, and what each is asked to show.
Confidentiality and assignment terms in force for the relevant people, with signatures on file — the gap between policy and executed document is the usual finding.
Whether access was limited to those who needed it, and whether that limitation was real or nominal.
Whether confidential material was identified as such consistently, rather than everything or nothing being marked.
What employees were told, when, and whether it was recorded.
Return of devices and materials, reminder of obligations, and prompt revocation of access.
How the information traveled to vendors, contractors and partners, and under what terms.
How the protection record is assessed.
Whether the information qualifies for protection at all.
Companies routinely believe every employee is under a confidentiality obligation and discover in litigation that the relevant person’s document was never countersigned, never executed at all, or superseded by a later contract that dropped the clause. It is checkable in an afternoon and almost never checked before it matters.
No. The requirement is reasonableness in the circumstances, and courts have consistently accepted that a small company is not held to the practices of a large one. What is assessed is whether the measures were sensible given the value of the information and the resources available — a modest business with signed agreements, limited access and a real exit process is generally in a stronger position than a large one with elaborate written policies nobody followed.
It tends to hurt. Blanket marking is routinely characterized as evidence that the owner did not distinguish genuinely sensitive material from ordinary business records, which undermines both the reasonable measures element and the identification. Selective, consistent marking is far more persuasive than universal marking, and considerably more persuasive than none.
Disclosure under an appropriate confidentiality agreement generally does not destroy secrecy — that is precisely what such agreements are for. The questions are whether the agreement was actually in force, whether its terms covered this information, and whether the disclosure stayed within them. Failures here are usually administrative: an expired agreement, a disclosure outside its scope, or a partner who was sent material before anything was signed.
As of the misappropriation, which is why timeline reconstruction matters more than a description of current practice. Measures introduced after a departure or after suspicion arose are prudent and largely irrelevant to whether the information qualified when it was taken. The evidence that counts is what was in force on the relevant dates, and it needs to be shown with dated documents rather than described.
Describe how the information is held and who has it. The Institute will help you see how the record reads.