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Protecting trade secrets is different from protecting other IP

Protecting intellectual property should remain a priority for Alberta businesses as long as the company and/or the IP exists. This means keeping up on protection methods for these items such as patents, copyrights and more. However, when it comes to trade secrets, the protection process can be more complex.

The primary reason for that complexity is that businesses cannot simply register them as they can other IP. Instead, other measures must be employed. While trade secrets are protected by legislation in other jurisdictions, in Alberta they arise by virtue of common law, and by what parties contractually obligate themselves to do.

But what falls under trade secrets? They include any information, processes, data or other items that gains its value from the fact that it is kept secret. The company derives value from this type of IP as long as it does not become public knowledge.

For this reason, if the information could benefit from some form of other intellectual property protection in order to protect it, thought should be given as soon as possible whether that should be done. Otherwise, protecting trade secrets must happen through business and legal means. A company should take the time to determine what trade secrets it might possess and how it should best go about protecting them. It should work with its executive team and legal advisors to do the internal diligence, set appropriate policies and procedures, draft and implement confidentiality agreements, and ensure other agreements with customers and suppliers protect the company's trade secrets.

Protecting this type of information occurs most often through confidentiality agreements signed by employees, contractors and service providers verifying that they will not reveal the information or use it for any purpose other than as authorized by the company. Failure to comply with these agreements will result in serious consequences for such individuals or entities. Remedies can include injunctions and significant damages.

Business processes need to be established to protect trade secrets. Sensitive information may also be kept in a secure location to prevent someone from simply coming upon it while on the premises. Appropriate technology must be acquired and implemented to reduce the risk of hacking or unauthorized access. Moreover, businesses should consider restricting access to trade secrets by limiting the number of people aware of it to those with a need to know.

Once something is no longer secret, the trade secret protection may be lost. For this reason, companies are advised to spend the time and money up front to protect and reduce the risk of loss of trade secrets.

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