Care and Maintenance of Confidential Information :
Intellectual Property rights are key elements needed to maintain a competitive edge in the market in today’s dynamic and competitive business environment. Intellectual property is a business asset, an integral part of the business process. Effective acquisition, management and protection of intellectual property can mean the difference between success and failure in businesses today. It is important that companies take appropriate steps to protect this valuable asset so as to get the possible commercial results from its ownership.
The various statutes that have been enacted provide an adequate mechanism of protection to intellectual property rights. In the case of patents, a patent can provide an inventor/corporates with a 20-year government approved monopoly and once his 20 years of protection is up, it can be freely exploited for the good of society. However, some ideas cannot be patented and indeed, some innovators do not want to patent their ideas as for instance trade secret or confidential information.[Today more than ever, intellectual property also includes confidential business information, trade secrets, know-how and key business relationships].
If a trade secret is really kept a secret, the monopoly on an idea or product may never end. But once the genie’s out of the bottle, like a champagne cork, you won’t get it back in, it is lost forever and the companies are unlikely to extract sufficient damages from whoever breaches confidentiality. Trade secrets are free—just prevent the secret being disclosed. Though it is difficult indeed, but not impossible. Famous successful examples include the recipe for Coca-Cola and the formulation of the alcoholic beverage Chartreuse, which is only known by two monks.
The need to protect these vital assets is more critical than ever. Knowledge has become the key strategic differentiator. If it is valuable to the company, it is valuable to its competitors as well. Most sophisticated business enterprises (whether small, medium, or large) recognize the need to protect this vital intellectual property. But little real attention is paid to protecting or securing these less formal types of intellectual property. It has been observed that many companies surprisingly are oblivious to the fact that these vital intellectual assets are walking out their front door on a daily, weekly or monthly basis, and heading across the street to rival competitors.
It is important for them to recognize this reality and take steps like creating awareness of the need to protect the company’s most valuable strategic assets without which no effective risk management program can be initiated; take stock of company’s core intellectual property. What know-how differentiates them from their rivals and gives them a strategic advantage over them in the market place? Do they have any trade secrets or unique technical expertise or processes that are worth protecting? And who owns these key strategic assets?
Besides, when executives or key employees leave the organisation, the fundamental question arises what knowledge or information can the employer legitimately claim as its own, and what knowledge or information can the executive or employer take away with impunity? To mitigate the risk employers can take the following steps:-
1. Make Confidentiality a Cultural Value – Take the confidentiality of key intellectual property seriously. Make the secrecy of their key intellectual assets a cultural value in the organization by treating this information as confidential at all times.
2. Revisit Contracts – Ensure that all its employee and contractor agreements include appropriate confidentiality, intellectual property, and non-competition clauses.
Establish a proprietary rights policy – Develop and put in place a Proprietary Rights Policy tailored to the company’s requirements, and enforce it.
Conduct exit interviews – Too often employee departures particularly those of executives and senior employees are managed casually and informally. At the time of departure, remind the employee of his or her duty to ensure they leave all the employer’s confidential information behind, and that they have erased, deleted and wiped all their personal lap tops, cell phones and other electronic devices clean of the company’s proprietary information.