Trade secret misappropriation is a cause of action brought by the owner of an allegedly protectable item or information against another who has improperly accessed, used, or otherwise stolen that item or information. In order to state a claim for misappropriation, one must possess a protectable trade secret. The Uniform Trade Secrets Act (UTSA), which has been adopted by most states in full or with some modification, defines it as follows: information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
It seems simple and logical that what is claimed must in fact be secret. But what does secret mean exactly? Secret means it is not generally known. One can not typically take something that is generally known and start protecting it with passwords and non-disclosure agreements in an effort to transform it into a trade secret, and thus protectable intellectual property. If generally known, it is not a trade secret.
Without a trade secret, you do not have protectable intellectual property. Instead, you have what has been called unintellectual property. Simply put, if the claimed intellectual property merely contains information available on the Internet, available at a public library, or otherwise generally available, it is not likely to qualify as intellectual property. That said, by expending resources to combine several specifically selected items in the public domain in such a way that provides the owner with a competitive advantage, one may be entitled to protection of what is known as a compilation trade secret. Protection as a compilation rewards those that identify, gather, and compile information in such a way that the underlying, publicly available information is transformed into something more. Nevertheless, knowing and identifying what is part of the public domain, and thus not secret because it is generally known and available, and what indeed qualifies as a trade secret is a critical first step for anyone seek protection. Once identified, measures can be put in place to protect its secrecy, such as certain agreements and other security measures. Finally, should an improper use arise (such as an ex-employee leaving with the protected items), one can be in the strongest position to pursue a trade secret misappropriation lawsuit.
Thus, understand the limitations of the law. Perform due diligence, which is easier now than ever given the availability of search engines, to determine whether or not the item or information is generally known. If so, reconsider your intellectual property identification and protection, possibly as a compilation. If not, you may well be on your way to avoiding being the not so proud owner of unintellectual property. It is better to know early so you can adjust what you identify and how you protect it accordingly.
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