For free initial consultation, call (858) 674-6177.
Mr. Himelstein is a San Diego attorney who helps clients to provide
legal protection for their intellectual property associated with the
internet and computer software and hardware and assists them in
general business matters.
The following contains information on trade secret law and the protection of web site and computer software using trade secrets.
Trade secret law can be used effectively to protect web sites and computer software. It can be used in conjunction with copyright law and sometimes with patent law. Certainly greater protection is available when a combination of legal protections is used.
Generally, trade secret law protects ideas, facts, and know-how, whether in tangible form or not. A trade secret can be defined as any formula, pattern, device, machine, process, technique, compilation of information, or program (referred to collectively as proprietary information). In addition this proprietary information must be used in one's business and give a competitive advantage or a potential competitive advantage. The proprietary information must be kept secret so that, except by improper means, it is difficult to acquire. A famous example of a trade secret is the Coca Cola formula.
Hidden aspects of web sites and software can certainly be protected by trade secret law. Just as in the case of copyright protection "web site" and "software" is much too broad a term to use in describing the application of trade secret protection. Instead trade secret protection is applied separately to graphics, source code, object code, algorithms, programs or other technical descriptions, data flow charts, logic flow charts, user manuals, data structures, and database contents. If you are selling a software application off-the-shelf, the graphics and object code cannot be a trade secret since you are publishing it. If you are licensing software used to create a web site or some other software application which has limited distribution, you may be able to protect even the object code by contractual means. Any software application used only in house can be protected by trade secret law. You should certainly consider protecting source code and all design documents using trade secret law.
The actions necessary to establish and maintain proprietary information as a trade secret is rather simple and comparatively inexpensive. In general you must take whatever actions are reasonably necessary under the circumstances to prevent discovery. All employees and anyone else who has access must be advised and should sign an appropriate document. Care must be taken using adequate procedures to ensure the material is protected. Documents should be marked with legends which alert a reader to the nature of the document as proprietary. Reverse engineering of object code can be legal, but protections against this may be available depending on the circumstances. Someone else may by proper means (e.g. independently) discover or develop the same information; trade secret protection cannot legally provide protection from this.
Once a trade secret has been revealed, whether or not authorized or intentional or even proper, it is no longer protectable as a trade secret. While anyone who improperly discloses proprietary information may be civilly sued and in some states criminally prosecuted, this often does not save the trade secret protection.
A trade secret remains good as long as it is not disclosed.
Please see my sub page on Internet law for additional information on trade secrets.
The legal information contained above is informational in nature and cannot be considered legal advice. Every situation has its own factual context and cannot be judged without that context.
For free initial consultation call (858) 674-6177.
This web site is a work in progress. Some parts are knowingly incomplete; other parts are known to need revisions. Certainly, the future will reveal the need for further additions and revisions.
Last update of this sub-page August 30, 2009 by David B. Himelstein.
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