Protection of Confidential Information, Know-How and Trade Secrets

Every good business has something worth protecting, and it needs careful thought to stop competitors gaining an advantage from it. Trade secrets, know-how and confidential information sit at the heart of most businesses, but they’re rarely capable of formal registration.

These can take many forms depending on what your business does: customer lists, supplier lists, source code, recipes, pricing information, algorithms, methodology and processes. Understanding what you have, what rights protect it, and what your exposure to risk looks like is the first step to protecting your business properly.

Confidential information is generally any business information that isn’t in the public domain and automatically creates an obligation of confidence on whoever receives it, things like customer or supplier lists, operating procedures and business strategies. Most contracts include confidentiality obligations, but it’s worth checking, since these aren’t always included, or are sometimes very basic.

Trade secrets set a higher bar. They’re information with commercial value precisely because it’s kept secret, covered by the Trade Secrets (Enforcement etc) Regulations 2018, and can include commercial, financial or strategic information such as operating methods, recipes, source code, algorithms, and customer or pricing strategies.

Information qualifies as a trade secret if it’s secret, has commercial value because it’s treated as secret, and is subject to reasonable steps to keep it that way.

Know-how is the knowledge and technique your business has built up over time, the skills and information it needs to run efficiently. Unlike trade secrets and confidential information, know-how may or may not be confidential.

The first step is identifying what you have. We usually recommend an internal audit to work out what counts as confidential information, trade secrets and know-how, and what needs protecting. Risk assessments should cover employees and stakeholders as well as suppliers and customers, and good internal training goes a long way in helping people understand what needs protecting and why.

Formal protection can include confidentiality agreements, non-disclosure agreements for third parties, limiting access to those who need it, training, robust contracts and terms and conditions, physical security and cyber security.

We can guide you through identifying and protecting your confidential information, trade secrets and know-how, draft the policies and agreements you need, run training where it helps, and advise or act if a dispute arises.

If it’s not registrable, it still needs protecting. Sometimes even more so.