What Is a "Trade Secret"? What is "Confidential Information"?

1. is not generally known by a company's (or individual's) competitors;
2. provides the holder with a competitive advantage; and
3. is treated by the holder in a way that can reasonably be expected to prevent the public or competitors from learning about it (other than by improper acquisition or theft).

"Confidential information" is any information that the holder wishes to keep secret.

What Is a Nondisclosure Agreement?

It is required that there be a nondisclosure agreement in place before you give anyone access to LBNL's confidential information. A nondisclosure agreement has the following benefits:

1. It establishes a confidential relationship between the parties, which creates a legal duty not to disclose the other party's trade secrets without permission.
2. It puts the party receiving infor mation on notice that it is to be kept in confidence and under what terms the information may be used.
3. In case of a lawsuit, the nondisclosure agreement shows a court that the disclosing party made efforts to protect its confidential information from unauthorized disclosure.
4. It can protect the patentability of the subject matter by demonstrating that we have not made a "public disclosure" of the information.

When Would I Need or Encounter a Nondisclosure Agreement?

As a federal laboratory typically engaged in unclassified researc h, LBNL does not have "trade secrets" as such. However, there may be times when LBNL wants to keep certain information confidential for a period of time. For example, LBNL may need to keep from public knowledge for a l imited time information related to an invention that LBNL plans to patent, s ince public disclosure of an invention has implications for patentability (see the section on patents). Sometimes CRADAs or Work For Others agreements contain clauses that allow prepublication review by the participating company so that it can check for any trade secret or patentable invention that might be disclosed to others. The Laboratory's policy and procedure for this case is described in the RPM Section 5.07 ("Disclosure of Laboratory Proprietary Information."

The second case involves the receipt of trade secrets or confidential (also called "proprietary") information from an outside organization. Businesses use nondisclosure agreements to protect everything from source code of computer software to marketing plans, price information, and research data. Most businesses that deal in high technology or the sciences have an active trade secret program in place to protect their know-how and inventions from competitors. An LBNL employee collaborating with such a company might be asked to sign a nondisclosure agreement. The Laboratory policy and procedure for this case is described in the RPM Section 5.06 ("Proprietary Information from External Sources").

The Licensing Group of the LBNL Technology Transfer and Intellectual Property Management department is responsible for negotiating and signing LBNL's nondisclosure agreements. If you have a question about the legal interpretation of any nondisclosure agreement, you should contact the Patent Group for guidance.