Manifestations of the information that is an idea can come in forms like new works of authorship, business brand names, and innovative products. Our laws offer exclusive rights to these manifestations of ideas through patents, trademarks, and copyrights. But not to the underlying idea itself.

No Exclusive Ownership Of Valuable Ideas

In our legal system, just having an idea does not result in any exclusive rights concerning the idea. Others can think of the same idea and manifest it for themselves. But while the law does not grant exclusive ownership rights in information like ideas, protecting a valuable idea against theft is accomplished through trade secret protection.

Protecting Valuable Ideas As Trade Secrets

Under the law, valuable information that qualifies as a trade secret will receive legal protection against misappropriation. Protecting a valuable idea as a trade secret requires that the information be economically valuable and the subject of reasonable efforts to keep it a secret.

To protect a valuable idea as a trade secret, proof that the idea was the subject of reasonable efforts to keep it a secret is needed. To have the evidence required, document the idea carefully, particularly concerning the efforts to keep it a secret. If reasonable efforts at secrecy can be proven, then legal relief is available if someone misappropriates valuable information such as an idea. This relief can come as court orders and monetary compensation.

Safely Sharing Valuable Ideas

Protecting a valuable idea by not sharing it with anybody and ensuring nobody has any access to information about the idea is the best way to keep the idea a secret. But to develop your idea, it is likely that you will need to start sharing information about the idea with other people. Fortunately, this is possible while maintaining information about an idea as a trade secret.

Protecting a valuable idea while sharing information about it requires taking essential steps. Specifically, to keep the information as a trade secret, share it ONLY with others who are legally obligated to keep it a secret for you.

Trade secret protection requires proof that you made reasonable efforts to keep the information secret. Sharing information with someone who is not legally obliged to keep it a secret may make it impossible for you to prove that you made reasonable efforts to keep the information secret: This is because sharing valuable information with somebody who is legally free to disclose it or do whatever they want with it is inconsistent with making efforts to keep such information a secret.

Licensed Attorneys Working For You

One group of people who will be legally obliged to keep a secret is licensed attorneys working for you. As long as the information shared with an attorney working for you doesn’t concern a future criminal act likely to result in death or substantial bodily harm to an individual, then under the attorney-client privilege, the attorney will be under a legal obligation to keep the information received as a secret for the client.

Those Who Signed A Confidentiality Agreement

The second category of people is those who have entered into a valid contract legally obligating them to keep the information a secret. A complete discussion of everything that determines the validity of such a contract is beyond the scope of this presentation. However, anyone wanting to protect information as a trade secret should know that any confidentiality agreement, also called a non-disclosure agreement, should be in writing, be signed and dated by all parties, and be supported by consideration.

“Consideration” is a legal term that refers to something of value provided in exchange for assuming a legal obligation in a contract. Consideration may be a payment of money but can be anything of value to the receiving party. A contract should always expressly state that consideration was provided, received, and is sufficient.

Practical Considerations For Protecting Valuable Ideas

When protecting a valuable idea, keep in mind that whatever protection the law offers, such legal protection is usually in the form of remedies delivered after the fact of any damage done. In reality, some people do breach their legal obligations.

Relying upon a legal obligation when sharing confidential information doesn’t take away the ability of the person to misappropriate your confidential information. It just allows you to seek a legal remedy through a lawsuit. Lawsuits, regardless of merit, can be expensive and risky. The relief received may also be less than satisfactory. Minimize the risk by being selective with whom you share valuable confidential information.

When protecting a valuable idea, share confidential information only on a “need-to-know” basis: This means sharing only so much information about the idea as the receiving person reasonably needs to know for the reasons you are sharing the information with them.

Proving Secrecy Efforts When Protecting A Valuable Idea

Making reasonable efforts to protect a valuable idea by keeping information about it secret may not mean much if you don’t have the evidence to prove you did this.

Evidence to establish the reasonable efforts made to keep valuable information a secret will usually be in the form of sworn witness testimony about the secrecy efforts and authentic documents that corroborate such testimony. A witness should be able to testify about the efforts made in protecting a valuable idea: Specifically, those efforts used to restrict access to the information to just authorized individuals who were legally obligated to keep the information a secret.

Creating and maintaining this type of evidence can sometimes be inconvenient. But it is the price for trade secret protection of a valuable idea.

Ending the Secrecy Of A Valuable Idea

The natural progression in manifesting an idea intended for public consumption is that it will often need to lose its secrecy. For example, if you have an idea to make and sell a new product, at some point, for the idea to become a reality, the product will need to be publicly disclosed, used, and offered for sale.

But it would be best if you made efforts to remain in control of what information about your idea becomes public and when: This is important for preventing copycat competitors from getting a head start on your idea and for preserving valuable legal protections available that may be available for the manifestation of your idea.

Legal protection for ideas that have gone from pure information to an actual invention, work of authorship, or brand in commerce, can be protected by patents, copyrights, and trademarks. Each of these protections has its requirements, some of which can be affected by the date of public disclosure or use.

Protect these potentially valuable rights by consulting with legal counsel before any non-confidential disclosure or use of an idea.

Summary

For protecting a valuable idea, the law does not give exclusive ownership rights in the pure information of an idea: Legal remedies are available, though, in cases of misappropriation of valuable information. But proof is required that the valuable information was the subject of reasonable efforts to keep it a secret.

So, when protecting a valuable idea, initially, all information about the idea should be treated as a trade secret. Restrict all access to the information to only those who are under a legal obligation to keep the information a secret, such as licensed attorneys working for you and those who have signed a confidentiality agreement and who also have a legitimate need to know. Create and preserve evidence that can prove, if need be, the reasonable efforts made to keep the information a secret.