A trade secret is any non-public information that is treated as a secret and that provides a person or entity with a competitive advantage. Trade secrets are generally not held by Universities given our mission to freely publish and disseminate knowledge and skill for the benefit of mankind. Trade Secrets also generally conflict with federal funding agencies mandate to broadly disseminate the results, data and information that result from the work performed using the federal funds. Hence, the University will rarely hold or license a “trade secret”.
To be a “trade secret” the possessor of the secret must take reasonable steps to maintain the secret. A “trade secret” can be maintained for as long as it remains a secret. A “trade secret” is lost when the secret becomes publicly known (i.e. it is no longer a secret). If properly maintained as a secret, courts will enforce the rights of the “trade secret” owner, including by court order that prohibits those who improperly possess the secret (for example those who steal it despite the reasonable protective steps taken by the “trade secret” owner) from using or disclosing the “trade secret”.
Notwithstanding the foregoing, the following describe some situations where a “trade secret” can be compatible with University principles and federal funding requirements.
1. Biological Materials as a Trade Secret
Although in accordance with federal funding guidelines there is an obligation to make novel biological materials freely available to others so that they can replicate your work, some aspects can still be kept as a trade secret. For example, if you’ve created a useful antibody, you don’t have to give out the hybridoma; you only have to make the antibody available to the public. The hybridoma itself can be licensed to one or more companies.
2. Protecting Software as a Trade Secret
As a University, it is possible to only make available the compiled version of software to collaborators and not the source code. The source code can be a form of a trade secret.
It is also possible to patent certain aspects of software because the source code, object code, procedures and documentation can be associated with the operation of the computer, its performance or the production of an output by the computer.
However, most often, software (primarily the source code) is protected via copyright as an original work of authorship that has been reduced to a fixed form.