Trade secrets are the broadest form protection, but at a cost. They cover much more than patents and copyrights. Whereas patents protect only novel and useful inventions, and copyright is limited to original and creative expression, trade secrets cover ideas, data, processes, techniques, business plans, customer lists, the secret formula for your key soft-drink product and much more. In terms of subject matter, the only limitation is that the information must be economically valuable because your competitors don’t know it. Think for a moment of what you wish you knew about your competitors and what you might pay if you could (legally) obtain that information. What you’re thinking of are your competitors’ trade secrets.
The information doesn’t need to be unique to qualify as a trade secret, so long as it’s not generally known by the public or your industry. If you and your competitor both independently develop the same technique for polishing widgets, you can both have trade-secret protection in that technique. (If all of your competitors have the same technique, well, then, perhaps it’s not as secret as you think.)
The rub, of course, is that trade secrets have to be, well, secret. That means taking “reasonable measures” to maintain secrecy. The law is flexible about what these “reasonable measures” have to be. Logically, the more valuable the trade secret, the greater the protection measures have to be. Measures you need to at least think about include: limiting the employees who may even have access (both physical and otherwise) to the information, requiring employees and others to execute well-drafted non-disclosure agreements, adequate security for your computer network, visitor logs to your plant, and even just stamping CONFIDENTIAL on documents that contain the information.
Although protecting your trade secrets is at least partially intuitive—the more important it is to you, the more you’re willing to do to protect it—it helps to know what trade secrets you have, assess their value, and be intentional and systematic about how you protect them.
There’s an additional advantage to being proactive about identifying and protecting your trade secrets. It’ll be much easier to enforce your rights should someone steal or illegally use your trade secrets. When trade secrets are misappropriated, you usually have to move quickly to limit the damage and maintain secrecy, but you can’t do that if you’re scrambling to figure out how to describe the trade secrets to a court, what “reasonable measure” you took to protect them, and how they’re valuable to your competitors.
Almost all businesses have valuable trade secrets. They’re created as a natural process of doing business. It’s worth the effort to conduct an audit of your trade secrets and to formulate a plan for protecting them.