Capitalizing on the economic benefits of a trade secret often requires the owner to disclose the trade secret to an outsider for evaluation, use or regulatory approval. A key aspect of such disclosure, or sharing, is that the trade secret be reasonably protected under the circumstances.
Despite the recognized need to share information in the real world, little written guidance has been provided to entities that need or want to share trade secrets with another organization. In particular, there is little written guidance on protecting trade secrets before, during and after the period in which they are shared, leaving an opportunity to consider how best to approach intelligent sharing of one’s valuable, secret information.
Typically, a trade secret owner will share a trade secret with another organization only in exchange for an acceptable commercial benefit. This Commentary addresses the risk-benefit balance by focusing on protecting trade secrets before, during and after sharing, while not unreasonably hampering either party’s business operations or desire to engage in due diligence or a relationship. Such protection can be achieved through contractual, physical or technological tools which are discussed more fully in this Commentary, open for public comment through July 1, 2025.
This Commentary is a project of The Sedona Conference Working Group 12 (WG12) on Trade Secrets. Questions and comments may be sent to [email protected]. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version. |
