What’s the first thing a trade secret owner should do? Properly identify its trade secrets.
That identification can and should take place when a trade secret is developed. That identification can and should take place before any controversy (e.g., investigating an alleged misappropriation of the trade secret and commencing litigation) or opportunity (e.g., negotiating a confidentiality/non-disclosure agreement, license, sale or joint venture involving the trade secret) arises.
What’s a sign that a trade secret owner may not yet have properly identified its trade secrets — i.e., may not yet truly know what they are? Shock value in a trade secret misappropriation complaint.
More specifically, an allegation that an accused misappropriator improperly downloaded hundreds, thousands, tens of thousands or even hundreds of thousands of files often is included — indeed, emphasized — in a trade secret misappropriation complaint. Such an allegation casts the accused misappropriator in a bad light and, if true, can help tell an overall story. But, emphasizing the number of downloaded files — as opposed to the number of trade secrets at issue — actually may reflect a trade secret owner’s lack of clear appreciation for the specific trade secrets at issue.
With that, to more efficiently and effectively protect, enforce and otherwise leverage a trade secret, identify it. Today is a good time to do so.