When Anthony left his job to begin a startup, he decided to take some documents with him. And when his autonomous vehicle company was acquired 8 months later by Uber, Anthony thought he had it made.
But then things began to fall apart. His former employer – Google Waymo – sued for theft of trade secrets.
I know what you’re thinking. The documents Anthony took must have had fantastic information about Waymo’s self-driving technology – and you’re probably right.
But one of the key documents in this lawsuit was actually a project management spreadsheet that contained program details like quarterly goals, weekly metrics, and key objectives and results.
Google understood that its valuable IP extends beyond just technology information and includes its know-how, internal methods and approach to project management.
And because Google had carefully protected all of this valuable IP as trade secrets, Uber ultimately paid Google close to $250M to settle the case.
Previously, we untangled the differences between IP and IP rights, and surveyed the options available. Now, let’s dive into how to protect your information and data.
Trade secrets, proprietary, confidential – what’s the difference?
Spoiler Alert: as far as engineers, scientists and business professionals are concerned, there is no difference between these terms. Another is ‘professional secrets’. All involve protecting non-public information and data with the same practical measures. Since the differences really only matter to lawyers, let’s simplify by referring to them altogether as “secrets”.
IP Myth: Most IP is protected by patents.
IP Fact: Most of the world’s IP is actually protected as secrets. Far less than 0.1% of the IP of even the most active patent filers is protected by patents.
What’s old is new again
Protecting secrets is the oldest IP right of all. The Code of Hammurabi – human civilization’s first-ever written legal code, with its famous eye-for-an-eye approach to justice – also included legal protection for secrets.
Although 4000 years has passed since then, today’s cloud and data-driven technologies have brought protecting secrets back to the forefront of most tech company IP agendas. We’ll examine the reasons for that in a later post, but first let’s explore what’s required to legally protect secrets.
What can be protected as secrets?
Any IP (idea, information or data) that is not readily available to the public can be protected as secret. Proprietary software code, proprietary data sets, customer lists, technical specs, requirements documents, business plans and pricing are just a few examples.
IP Myth: Trade secrets provide easy catch-all protection for information and data.
IP Fact: True – but only if the collection of information or data is not available to the public, and you actually take reasonable steps to protect it.
How to protect non-public information and data
This IP right is in the “self-help” category. No formal registration is required, most of the measures are common sense, and the real trick is just to stay organized and consistently follow a plan.
You’ve known since elementary school how to protect a secret, and it’s really not different in business:
- don’t tell others unless they need to know;
- store in a safe place;
- mark it “confidential”, “proprietary” or “secret”; and
- disclose it only after signing a confidentiality agreement [nondisclosure agreement or NDA].
Best practices also include keeping a log of what’s disclosed (so you can later prove what you disclosed), and requesting everything be deleted or returned when the NDA expires.
And remember the Waymo example above – your valuable IP is not just the crown jewels, but probably most or all of your internal documents, know-how and tools. Treat it all as secret.
Always carefully apply your organization’s rules for protecting your information and data. And if you don’t have any rules, you need them.
…ASAP.
Next post, we’ll look more closely at some details of protecting secrets, including what it costs.
Takeaway
- Secrets protection is essential in today’s digital world.
- A lot of your IP can be protected as secret.
- Include a marking indicating the material is secret, confidential or proprietary.
- The need-to-know principle must guide all decisions to share information and data.
- Signed NDAs are essential before sharing secrets.