Trade secrets are not only essential to the economic viability of a business, but they also have independent economic value as long as they remain secret. A similar case, Silicon Image, Inc. v. Analogix Semiconductor, Inc., (file fire 642 F. Supp 2d 957 (2008) which was tried on November 21, 2008 in the U.S. District Court for the Northern District of California, concerning an applicant`s allegation that the defendant improperly violated the applicant`s business secrets and thus attempted to prevent the defendant from preventing the defendant from selling copies of his work. There are a number of scenarios in which a trade secret holder can be adequately protected even when the NOA expires. An example would be that the plaintiff receives further assurances as to the defendant`s intentions to preserve the confidentiality of the information despite the conduct of the NDA. On-line Technologies v. Perkin Elmer Corp., 141 F.Supp.2d 246, 256 (D. Conn. 2001).
Another example could be the fact that a third party who did not obtain trade secrecy under the NOA participates in malfeasation and attempts to increase the operation of the NDA as a defence. In Canada, the question of whether an NOA could constitute an unenforceable trade restriction was considered in the context of labour law, but the question of whether an NOA could be considered a restriction on transactions between two or more companies was very little debated. In Canada, too, the distinction between trade secrets and ordinary confidential information has been very little debated. Therefore, the American case law may give some indication. In addition to providing such a definition in your legal agreement, you should develop a practice to clearly identify the information you disclose as “confidential” or “trade secret” to avoid confusion. How can a Canadian lawyer compensate for the risk that an NOA may be perceived as an unenforceable trade restriction against the risk of loss of trade protection by providing for the final expiration of confidentiality obligations? The distinction between trade secrets and “normal” confidential information is decisive, both by definition and for the duration of the protection obligation. The deadlines should apply to ordinary and confidential information, but not to trade secrets, and you should expressly state this in your NDA. If you only use the legal agreement for trade secrets, then don`t mention any time frame. This definition of trade secrets will be useful to future jurisprudence.
This case law dealt with the issue of disclosure of trade secrets at the end of a specified period of time and the consequences of the expiry of the contractor`s obligation to protect trade secrets after a specified period of time.