When you begin to study the law of trade secrets, you are advised that trade secret protection requires that the secret cannot be publicly disclosed, and this requirement is contrary to the patent protection system that requires the owner to publicly disclose the invention. This secrecy requirement appears unrealistic in a commercial environment. It is difficult to imagine how one can exploit the trade secret commercially without some disclosure to others engaged in the commercial activity associated with use of the trade secret. Those necessary disclosures could involve employees, suppliers and customers.

When the issue of making a necessary discourse arises, many practitioners look to nondisclosure agreements (NDAs), which may or may not include noncompete provisions and/or specific identification of the trade secret information. Unfortunately, these NDAs are often very general or comprise boiler-plate language that is insufficient to convey that a specific trade secret is being disclosed. Another and possibly more troublesome aspect of a breach that results in a public disclosure, such as a publication in a trade journal, is the loss of the trade secret to nonbreaching third parties.

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