Foust Discusses Trade Secrets as Alternatives to Patents

Shook, Hardy & Bacon Of Counsel Amy Foust authored an article for the Dade County Bar Association's Bulletin explaining trade secret law and its distinctions from patent law. "Trade secrets are a hot topic these days," she explains, because courts have recently increased the disclosure required for a patent application and reduced the scope of what may be patentable.

After defining trade secrets, Foust notes that the burdens associated with trade secret protection are significant. "Small companies reliant on agility to compete with larger competitors may not be disciplined about getting written agreements in place before conducting business with a new party," she writes. "Medium and large companies may find it difficult to formulate and enforce policies to protect trade secrets, especially as the body of trade secrets and the number of individuals who need access to a variety of trade secrets grow."

Foust calls trade secrets a "useful tool," but notes that they should be intentionally created and maintained. "As with other intellectual property (IP), businesses of all sizes should periodically assess what information they are using that is economically valuable and not generally known. Once identified, potential trade secrets should be secured—physically or electronically—and marked so that anyone who handles the information knows it must be handled with special care."