In advanced manufacturing, the ability to gain maximum value from your know-how can result in considerable competitive advantage. Robert Bryan, partner at BPE Solicitors LLP discusses.
To do so requires the effective implementation of a legal, as well as technical, strategy.
First, identify the status of your know-how. Is it a trade secret? Does it constitute highly confidential information? Or is it information that, whilst valued by your organisation, is in the public domain?
Classification of that information helps to determine how it should be protected. If it is a trade secret, how long is it likely to remain the case? Advanced manufacturing is an area of constant rapid change.
So, unless the trade secret represents a sustainable step change, do not consider incurring the expense of a patent application. Remember too, that once published, although the patent subject is protected, it is in the public domain.
Designing around that patent thus becomes a real potential concern. Instead, consider entering into tightly drafted, highly specific non-disclosure or confidentiality agreements.
Not only are they easier, quicker and cheaper to enforce, because both parties recognise the agreement’s purpose is to keep your secrets secret, it usually has the necessary deterrent effect too.
Remember, when disclosing information, for it to gain legal protection it must have the ‘necessary quality of confidence’ and be disclosed in circumstances that impose a degree of confidence.
Your ability to act to protect this information is ultimately based on conscience. Be aware too that a person who assists a recipient of confidential information in its misuse has a potential secondary liability, if knowledge of that misuse can be proven.
Merely describing information as ‘confidential’ is not sufficient to make it so. Information already in the public domain, to be deemed confidential, requires some demonstrable act of the human brain to be applied to it.
For guidance on how to keep your secrets secret, e-mail [email protected]