Respecting and Protecting this Data
- A Business Must Be Certain That It Is Properly Using Trade Secrets And Other Intellectual Property.
Intellectual Property includes patents, trade secrets, confidential information, trademarks and copyrights. It can only be used by any enterprise either by ownership, license or other permission. Newer businesses often overlook their responsibilities to obtain appropriate licensure or clearances to use Intellectual Property owned or developed by others. Using any such property without ownership, license or permission could result in claims, law suits and damages that may bankrupt even a well financed start-up venture. Be particularly careful of one or more of the new organization's participants taking trade secrets, confidential information or other Intellectual Property from a former employer, intentionally or otherwise. A diligent investigation and required disclosure, with the aid of competent Intellectual Property Counsel, is a wise investment. This applies not only in the laboratory and product development areas, but also in other areas of an enterprise including manufacturing processes, customer names, contacts and other sales and marketing data. Such information may be a trade secret or confidential information belonging to a former employer and must be dealt with accordingly. Failure to do so could be a financial disaster.
Increasingly, business organizations of every size are monitoring activities of key employees to create records of theft and misappropriation of Intellectual Property and other business data. For example, screening email, capturing keystrokes and collecting and monitoring other data of key employees with inexpensive commercially available software has been implemented in many businesses. When a key worker leaves, such data can be easily analyzed by the former employer and computer forensic experts. Any such data showing a former employee misappropriated trade secrets or other confidential information will aid in any claims and litigation against him and his new employer. The likely civil and even possible criminal liability obviously should be avoided. Although this seems to be violated most frequently in new businesses, in every organization, appropriate proactive due diligence should be undertaken of all principals to be certain that misappropriation of Intellectual property of former employers is avoided.
- As Valuable Information Is Developed Within Any Business, Appropriate Precautions Must Be Undertaken To Protect It From Misuse By Others.
Often, a business organization develops information, such as product research data, manufacturing processes and customer lists which are unique and not known outside the organization. Such information may constitute trade secrets or confidential information which has competitive value because it's known to the business and not to competitors. In order to protect that information, certain procedures are essential. Experienced professionals should be retained to implement these procedures to be certain such information is identified and protected as valuable assets to prevent either a competitor or employee from misappropriating and misusing it.
Recommended procedures would likely include an Audit and identification of an organization's entire inventory of its trade secrets and confidential information undertaken and updated at regular intervals. Many professionals also recommend that one, and only one, physical copy of the inventory be prepared, by manual typewriter or in long-hand, on paper which cannot be legally photocopied or faxed, inserted into a three ring binder and placed in a secure safe, either with a combination lock, password protected or both, to assure that access is limited to one or only a few employees. (The paper which cannot be legally photocopied or faxed is available on special order from most office supply stores. Photocopies or fax copies of such paper appear either completely black or automatically print on the photocopy or fax, "unauthorized copy," or some other incriminating statement ).
At present it is also recommended that such written inventory not be prepared in digital form, so that no copy of it is stored electronically in any computer, server, disk or other data storage device. However, this protocol may change very soon. For example, it was recently announced that software will be available by the end of 2003 that protects such trade secret or confidential data when stored in servers, hard drives or other devices. As demonstrated, any unauthorized attempt to copy, download, email or print that data is prevented and reported. If anything, this continual development and improvement of security measures underscores the need for professional assistance in creating and continually monitoring and upgrading an organization's procedures to protect this intellectual property.
These are only a few of the many elements of a program to protect an organization's trade secrets which an experienced attorney and consultants from other disciplines would likely recommend and implement. That program will not only reduce the likelihood of any theft of such information or secrets, but will also aid in proving the existence of such intellectual property in court should litigation be necessary to prevent unauthorized use.
