By George Hawkins, Partner
Often former disgruntled or conniving employees steal our trade secrets. In this day and age, modern electronic devices, such as cell phones, can prove to be essential for the thief’s success. These devices can share photographs, emails, and other data. Although it may be impossible to control the use of our employee’s electronic devices, there are ways to circumvent theft. If we are unable to do so, there are ways to prove our case against the thief and the entities who purchase our secrets.
PREVENTION OF TRADE SECRETS THEFT
Some employees, whether corporate executives or maintenance workers, may have access to their company’s trade secrets at work. Should your company have a secure entry system, such as a metal detector, it is wise to have employees leave their devices at the entry.Confidentiality agreements may deter, albeit, not prevent theft of trade secrets. However, they provide essential evidence in litigation should it come to that. All staff with access to trade secrets should sign confidentiality agreements as a condition of employment. These agreements provide your attorneys with crucial evidence serving as settlement tools, or if necessary, as evidence at trial. All covenants not to compete and disclose should include a confidentiality agreement.
It is important to conduct exit interviews whenever possible. During that interview, you should remind employees of the confidentiality agreement and the restrictions of the covenant not to compete and disclose. You should conduct exit interviews for higher level employees with an attorney present. Collection of an additional exit confidentiality agreement and covenant not to compete and disclose should occur during the exit interview.
DEALING WITH THEFT
When faced with theft of trade secrets, the first rule is to stay calm and contact an attorney well versed in such matters. Your attorney will advise you to preserve evidence. Often times, employees will use company computers to perpetrate the theft and communicate with purchasers of the secrets. Employers should cordon off all work spaces. Employers should retain a computer pathologist proficient in data recovery to preserve any potentially important evidence should your case proceed to trial.
Your attorney may also advise you that a preliminary injunction or seizure order is necessary. The preliminary injunction stops further dissemination of the secrets. A seizure order helps to preserve evidence by obtaining proof of theft and dissemination. Although the damage may already have occurred, the court system can assist in obtaining compensation to help make your company whole again.
INTERVIEWS OF EMPLOYEES WITH KNOWLEDGE
Employers should handle interviews of employees who may have knowledge or suspicion of the theft in a gingerly, non-accusatory manner. The employer should make the employee comfortable to share any information he or she may have. The interviewer should consider comfort factors such as sitting next to the employee as opposed to having a desk separate them. The employers should offer them water or reassure them of their value. Employers should address the theft in a non-accusatory way after a comfortable environment is established. This approach fosters an open, honest dialogue.
The attorneys at Dunlap Bennett & Ludwig are experienced business lawyers who have handled many aspects regarding theft of trade secrets. We are located in Washington D.C. near the United States Patent and Trademark Office and the United States Copyright Office. We will provide you with sound representation based upon years of experience. We handle cases with discretion, careful representation designed to protect your secrets and any evidence of theft thereof. If you have encountered theft of your trade secrets, call our intellectual property team at (866) 755-8745.
To learn more about the USPTO Trade Secret Policy, visit https://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy.