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But is it a trade secret? Software is different than other types of trade secrets because both copyrights and patents might provide additional protection. Protecting software as a trade secret has some advantages to using a copyright or patent. For example, trade secret protection does not require—as copyrights or patents do—an application and upfront filing cost. Trade secrets—perhaps obviously—are much more secret than more publicly available patents or copyrights.
Moreover, trade secrets can protect a broader array of software information than a copyright. Ultimately, using trade secrets to protect software may be most useful to a small software company, as it innovates quickly and competes against larger, well-funded competitors with older, legacy software. Yet, advantages aside, trade secret protection for software can be difficult—perhaps even more so in a growth and sales-oriented environment.
What the cases show is that the entire software package is unlikely to be a trade secret. Of the different parts, the source code is most likely to be a trade secret. But the more visible to a user a part of the software is, the less likely that part is to be a trade secret.
A recent case shows these basics in action. Your company developed a new software product—an automatic ticket pricing product perhaps. A company—after receiving several trial periods and demonstrations—became a customer and licensed your software.
After becoming a licensee, the customer received continuous training from you. While licensing your software, the customer decided to build its own automatic ticket pricing product.
To do so, the customer hired a developer and sent the developer various annotated screenshots of your software. You sued the customer. The law of trade secrets did not protect your software.
In short, because the company gave free trials of its software without confidentiality agreements. One of its customers was NRZ, which was owned by Messrs. Importantly, Broker Genius had no evidence that any of the defendants accessed its source code. The court analyzed three types of information that Broker Genius claimed were trade secrets—information about scaling AutoPricer v.
Generally, to succeed on a claim for trade secret misappropriation, a plaintiff must prove that 1 it had a trade secret, and 2 the defendant used the trade secret improperly.
Improper use of the software was an easy question for the court. First, the Service Agreement prevented disseminating, distributing, and reverse engineering the AutoPricer software.
But the claimed trade secret information was not secret enough to be a trade secret. Broker Genius could not show sufficient secrecy because Broker Genius had disclosed information it claimed to be a trade secret to people under no obligation to protect the confidentiality of the information.
Georgia cases under the GTSA analyze software similarly. In fact, the law about computer software and trade secrets has not greatly changed in decades. That said, Georgia courts may be less likely than the court in Broker Genius to conclude that parts of software besides source code may be a trade secret. The more visible a part of the software is to users, the less likely it is to be a trade secret. Here are three Georgia examples:.
Ultimately, the Broker Genius case is a good reminder of the steps to increase the chance of being able to protect software as a trade secret. Those steps can include the following:. Zalta , F. Heinemann , Ga. Georgia law on software as trade secrets Broker Genius is not unusual.
Here are three Georgia examples: In Airwatch LLC v. Those steps can include the following: Adopt confidentiality policies that cover documents, that warn employees about what can be discussed publicly including on social media, and that create exit interview procedures; Have employees acknowledge the policies in writing; Have employees sign confidentiality or non-disclosure agreements that create reminders for employees to keep secrets throughout their tenure and that establish a process for keeping new work confidential; Make third parties sign confidentiality agreements before being able to access trade secrets or use the trade-secret-containing software.
Every agreement under which someone gets access to software containing trade secrets should have a confidentiality provision. The confidentiality agreements should mention specific software features, and source and object codes; Supplement written policies with verbal warnings to employees and customers about specific trade secrets; Inventory and identify trade secrets.
Early identification can avoid the difficulty of being in the middle of litigation and trying to claim things as trade secrets that the business treated inconsistently. In software, this probably means to note what parts of the software are trade secrets and treat those parts consistently; Mark the visible parts of the software as confidential; Restrict access to the trade secret parts of the software to those who need to use them; Log who uses the trade secret parts of the software; Monitor how software demonstrations occur; Consider patent and copyright protection; Do not distribute code or software into the open source community; Establish adequate electronic and physical security.
This may mean a code repository with secured access to all confidential materials. In addition, log and monitor any copying. Use firewalls and passwords. Give varying degrees of access. Basically, all employees do not need access to all information; and Be able to estimate how long the software took to create and articulate why others cannot easily create similar software.