Overview
Trade secret protection depends on more than good intentions. It requires taking appropriate measures to keep the information secret. Courts often look for evidence of deliberate, consistent effort: who had access, how that access was controlled, what agreements and other protections were in place, and whether employees and consultants understood what was confidential and that it should be maintained as confidential. If a client is unable to demonstrate that appropriate measures were taken to protect information, there may not be an enforceable trade secret at all, no matter how valuable or sensitive the information may be. The protection program can provide the infrastructure that makes those measures clear and defensible.
Leason Ellis works with clients, including legal teams without dedicated in-house IP counsel, to build protection programs that reflect how their organizations operate. We start by identifying what information may be valuable because it is kept confidential, then work through a consistent set of practical questions: is this information valuable enough to be maintained as a trade secret, is it worth pursuing as a patent, or should it be published defensively, so others cannot patent it or treat it as confidential information? From there, we help put in place the policies, procedures, and agreements needed to maintain protection. This includes confidentiality and non-disclosure agreements with employees, contractors, vendors, and collaborators; onboarding and offboarding procedures; access controls; document-handling protocols; and coordination of a client's cybersecurity and physical security measures. We also help confirm that the information being protected is properly owned by the client. Ownership can become an issue when new hires or consultants bring information or prior obligations from a former employer. When an auditor or a court asks what measures were taken to protect information, clients can demonstrate the measures they have taken.
Our approach is grounded in commercial reality. A program that looks complete on paper but is not followed in practice may be difficult to defend. We build frameworks that fit the way a business works, so that appropriate measures become part of daily operations rather than a separate compliance exercise. The same principle applies regardless of company size: a large organization may hold so much proprietary information that any single piece carries less weight on its own, while, for a smaller company, a single vendor relationship or process can be highly valuable precisely because it stays confidential. Where it is useful, we also advise on how trade secret protection fits alongside patents and other rights, helping clients decide where each form of protection serves them best.
