A trade secret program works only when a company consistently identifies valuable nonpublic information, limits and manages access to it, and can show that it took reasonable steps to keep it secret. Start with an inventory, match safeguards to each asset’s value and risk, and make employee, vendor, disclosure, departure, and review procedures part of normal operations. This guide covers the federal-law foundation; state, foreign, and company-specific requirements call for advice from qualified counsel.
Understand what qualifies as a trade secret
Under the federal definition, information may qualify as a trade secret if its owner has taken reasonable measures to keep it secret and it derives independent economic value from not being generally known or readily ascertainable by others who could benefit from its disclosure or use. The definition covers many forms of technical and business information, whether tangible or intangible and regardless of how it is stored. It expressly includes programs and codes, but a confidentiality label alone does not make information a trade secret. Read 18 U.S.C. § 1839.
The federal statute also distinguishes misappropriation from lawful discovery. Improper means include theft, bribery, misrepresentation, breach or inducement of a duty to maintain secrecy, and electronic or other espionage. Independent derivation and lawful reverse engineering are not improper means under the definition. A protection program therefore helps safeguard qualifying information; it does not create an exclusive right against lawful independent development or information that is generally known or readily ascertainable.
The Defend Trade Secrets Act (DTSA) provides a federal civil cause of action for trade secret misappropriation. The USPTO summarizes the DTSA and other trade secret resources.
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Identify and prioritize candidate secrets
Build an inventory of information that could meet the legal criteria. These are candidate categories, not automatic trade secrets: assess each item’s secrecy, value, ownership, and safeguards individually.
Look across technical and business teams
- Source code, build and deployment details, algorithms, methods, and technical designs.
- Prototypes and nonpublic product plans or roadmaps.
- Nonpublic pricing, business plans, and customer or supplier information where the legal criteria are met.
Record enough to make the inventory useful
For each asset or well-defined group of related assets, record what it is, why its secrecy has business value, who owns or licenses it, where it is stored, who needs access, which outside parties receive it, and the likely consequences of disclosure. Name an internal owner who can confirm whether the information remains sensitive and who should have access. Avoid descriptions so broad that teams cannot tell what material is covered.
Choose handling labels people can apply
Use a small set of company-defined classifications with concrete handling rules. The labels below are an illustrative operating scheme, not legal categories. Tailor the rules to the company’s information and systems.
| Illustrative label | Use | Example handling rule |
|---|---|---|
| Highly restricted | Candidate secrets whose disclosure could cause substantial harm or whose access should be limited to a small group. | Grant access by role and documented business need; require approval before external disclosure. |
| Confidential | Nonpublic business or technical information that needs controlled sharing. | Share only with authorized people and use the company’s approved repositories and external-sharing process. |
| Internal | Information intended for company use but not assigned the tighter controls above. | Keep within approved company systems and follow applicable internal-sharing rules. |
Make labels visible on documents and repositories where practical, and explain what each label requires. A mark helps people recognize handling expectations; it is not a substitute for access controls or other reasonable measures.
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Match safeguards to value and risk
There is no single security checklist that makes every company’s program reasonable. The DOJ’s guidance says the owner’s measures “need not be absolute, but must be reasonable under the circumstances,” considering the facts of the case. It discusses physical and computer security, need-to-know access, and practices for sharing with third parties. See DOJ Justice Manual § 1127.
Assess the exposure before choosing controls
For each candidate secret, consider its economic value from secrecy, the probability and impact of loss, the number and type of authorized users, whether access is internal or involves a vendor or customer, the burden of the proposed controls, and whether the controls are actually followed. A small group’s access to sensitive source code may call for tighter restrictions than broad access to lower-risk internal material. Revisit the assessment when the information, users, systems, or sharing arrangements change.
Put access controls into everyday systems
- Restrict access by role or another documented business need; do not give broad access merely for convenience.
- Use controlled repositories, authentication, access logging, and secure backups appropriate to the asset’s risk.
- Separate highly sensitive material from general working spaces when practical.
- Establish a process to approve access, review who still needs it, and revoke it when the need ends.
- Use physical controls where sensitive material exists in paper, prototype, lab, or other physical form.
- Mark files and repositories so authorized users can identify handling requirements.
The USPTO’s Trade Secret Intellectual Property Toolkit gives examples including need-to-know access, agreements, training, marking, digital and physical controls, external-party safeguards, and departure procedures.
Set rules for employees and outside parties
Use agreements and training with employees
Use confidentiality and invention-related agreements suited to the relationship and applicable law. Explain what information employees must protect, when they may share it, how to report a suspected loss or improper disclosure, and what obligations continue when employment ends. Train employees regularly to recognize sensitive information, use approved handling and sharing methods, and raise concerns.
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Under the DTSA, an employer must provide notice of the statute’s whistleblower immunity in agreements with employees that govern the use of confidential information. The immunity concerns certain confidential disclosures to a government official or an attorney to report or investigate a suspected legal violation, as well as certain filings made under seal. A cross-reference to a policy can meet the notice requirement if the policy states the employer’s reporting policy for suspected violations of law. Have counsel review the notice language and its application to employee, contractor, and other agreements. See 18 U.S.C. § 1833.
Control external access before sharing
For vendors, contractors, licensees, prospective customers, and other recipients, use agreements and procedures that fit the relationship. Define the permitted purpose and scope of access, whether onward disclosure is allowed, the recipient’s security obligations, how incidents must be reported, and what happens to the information when the work or discussion ends. Limit the material shared to what the recipient needs. The USPTO toolkit gives examples of confidentiality agreements for both employees and outside parties.
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Approve and record external disclosures
Require approval before sharing sensitive information outside the company. Record what was shared, with whom, for what purpose, under which agreement or other safeguards, and who approved the disclosure. Choose protections appropriate to the recipient and purpose, and revisit access if the purpose or relationship changes.
Prepare for suspected loss or misuse
Establish a process for promptly investigating a suspected misappropriation or unauthorized disclosure. Depending on the circumstances, that may include preserving relevant records, restricting or suspending access, assessing what information was exposed, and involving security staff and counsel. The DOJ guidance discusses evaluating security measures and third-party sharing, but it does not prescribe one incident playbook for every company; tailor the response to the systems, facts, and applicable law.
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Handle departures deliberately
When an employee leaves, coordinate a timely access and property review. Revoke credentials and system access, recover company devices and materials, and address return or destruction of trade secret material in the employee’s possession where appropriate. Remind the departing employee of continuing confidentiality obligations and document the completed steps. The USPTO toolkit identifies return or destruction and reaffirmation of obligations as examples of measures at departure. Consult counsel on lawful and proportionate handling of employee devices and personal accounts.
Assign owners and keep evidence the program operates
Give accountable owners responsibility for maintaining the inventory, access reviews, training, agreements, vendor oversight, and incident procedures. Set review points that fit the company’s risk and operations, and update controls when teams, products, systems, or sharing arrangements change.
Keep practical records of approvals, access reviews, training completion, agreement versions, incidents, and departure checklists. These records are an implementation practice, not a federally prescribed format; they help the company track whether its safeguards are being used and identify gaps. The statutory standard is reasonable measures under the circumstances, not a particular form or documentation system.
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