Source: www.carriermanagement.com
One of the most difficult aspects of trade secret law is determining whether something is actually a valid trade secret and not merely confidential information. To determine whether something is a valid trade secret one must establish the following elements:
(1) Define the scope of the trade secret
(2) Establish the independent economic value of the trade secret
(a) Prove the trade secret in not generally known
(b) Prove the trade secret is not readily ascertainable by proper means
(c) Show value due to costs and competitive advantage
(3) Prove reasonable efforts were used to maintain its secrecy
(4) Establish exclusive ownership of the trade secret
According to the Restatement 3d of Unfair Competition §42 comment f (1995) A trade secret is essentially any type of idea or process that provides its holder with a significant competitive advantage over competitiors becuase the competitiors do not know the trade secret. Under the FUTSA a trade secret can even be an original combination of known parts as long as the new combination is materially different from others that are used in the field. See Sun Crete below.
When asserting a claim for trade secret misappropriation, there are two points that need to be established:
(1) Prove validity and ownership of the Trade Secret; and
(2) Prove there has been misappropriation (Criminal, Civil, or thorugh Breach of Contract).
This page provides an overview of the steps to take in order to establish the validity and ownership of a trade secret through the development of the case law in Florida.
First, you must be able to define with specificity the information that you are seeking to protect under the trade secret laws. Authority for this is listed below:
Second, you must be able to establish that the information has economic value. The courts measure this by looking at whether the information:
(a) Is generally known:
Here, you must be able to demonstrate that the information is not generally known to others in your field/industry. See Greenberg below.
(b) Readily ascertainable by proper means:
Here, courts look at how much effort and expense did the injured party incur in creating the information. See Premier and Unistar below. It is important to note that just because information is discoverable through other means does not make it un-protectable. See Biodynamic below. One way to assess how difficult it is for others to find the information is to do a news search on the internet. 1-7 LN Practice Guide: FL Business Torts 7.08.
(c) Value based on costs and competitive advantage:
Economic value can also be demonstrated by the significant costs involved with developing the information or by showing the competitive advantage provided by the information. See Demit below.
Third, the FUTSA requires that you employ reasonable efforts to maintain the secrecy of the information. See Fla. Stat. §688.002(4)(b) below. Florida courts have also taken into consideration the extent and methods used to disseminate information within your organization. See Liberty below.
The last requirement for demonstrating the validity of a trade secret is to prove that the plaintiff is in fact the owner of the trade secret. See Fla. Stat. §688.002(4) below. Since you are claiming that your rights in the trade secret have been violated it only makes sense that a party would have to show exclusive ownership in order to enjoy the benefits of trade secret protection under the FUTSA. It is important to note that mere possession is not sufficient in order to establish ownership. See Restatement 3d of Unfair Competition §40 below.
