What is a Trade Secret?
Trade secret law is set out by the various State enacted laws. Texas, along with the large majority of States, has adopted a form of the Uniform Trade Secret Act. Trade secret laws are for protecting information having economic value that is not publicly available (think secret customer lists, formulas, data, strategy, business methods, information, processes, software code, etc.). Naturally, there is some overlap with patentable material. In those cases strategic and economic considerations may cause some to elect to keep the material a trade secret rather than seek patent protection.
How can I get Trade Secret protection?
To be protected by the trade secret laws, the first step is to make sure the desired material qualifies as “information” as defined by the State statute of relevant jurisdiction. The UTSA defines trade secrets as “information, including a formula, pattern, compilation, program, device, method, technique, or process.” This is a non-exclusive list, but gives a good sense of the scope of covered information. Next, the information must have economic value. Courts look to factors such as the value to the holder, the cost and difficulty to develop, the method of acquisition of the information, and the cost of securing and maintaining the secret, to name a few. Additionally, the information’s value must come in part from not being generally known. Think of it needing to provide “an edge” over others. Finally, the information cannot be readily ascertainable by others. This gets back to the need to keep it secret and out of the general knowledge, but further adds that it can’t be relatively easily and cheaply discovered or acquirable. Keep in mind that though this information is generally accurate to the UTSA, the law that matters is the one that has been enacted in your State. Because it may differ in some respects there is no substitute for looking it up or talking to a knowledgeable attorney who practices in that jurisdiction. A skilled attorney can help you develop and implement a strategy to identify and protect your trade secrets.