Industrial Secret
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Protect Your Business Right Now
With globalization and the technological innovations that emerge every day, it is becoming increasingly necessary and essential for companies to adopt appropriate measures to protect their inventions from competitors. In this sense, it is essential to analyze which is the most interesting strategy for protecting technology. Industrial secrets, for example, may be an option.
You know that there are many mysteries in the industrial sector, right? Stop and think about how Coca-Cola is made or even the famous McDonald’s “special sauce”. Well, there is no way to find out, after all, they are trade secrets. To understand in depth what is behind all this legal protection, keep reading the text!
What is an industrial secret?
We can say that an industrial secret is any relevant and useful information that is not generally known. It is the body of knowledge, both technical and otherwise, that is necessary to guarantee a company access, advantage or maintenance in its own business.
Therefore, an industrial secret is knowledge that has the capacity to give a process or product a completely unique characteristic that will differentiate it from the competition. The confidential nature of the information can be preserved, as the objective is to prevent its acquisition, disclosure or use by unauthorized persons.
You can understand industrial secrets as a contractual clause that may be present in contracts for the use, employment and distribution of a product/service. It is possible to have the guarantee that people who work in the company — who are directly involved in the creation, whether using, manufacturing or marketing — will not reveal the characteristics of the product/service to third parties. In other words, these people are prohibited from breaking the confidentiality clause.
Therefore, it is a way of protecting the creation, ensuring that the company has a competitive edge for a long time. Nowadays, as everyone knows, even cutting-edge technologies are plagiarized by competitors and improved. For this reason, protecting industrial secrets for as long as possible is the best policy.
Is there a law that guarantees the protection of industrial secrets?
The legislation here in Brazil has its own mechanisms dedicated to the protection of industrial secrets. The Industrial Property Law (Law 9,279/76) provides security for data and information that are considered confidential, thus punishing acts of unfair competition, characterized by the unauthorized use of information.
The law contains rules that prevent confidential information from being used by third parties who gain access to the data, whether through an employment relationship or a contractual relationship. In addition, the legislation punishes third parties who access this information fraudulently and illegally.
It is worth remembering that, according to the law, an industrial secret can be technical or even related to business, the famous business intelligence. The characterization of what constitutes an industrial secret is quite broad, considering what the law says. Thus, the law protects formulas, technologies, techniques, tools and production methodologies, as well as marketing and administrative information, sales techniques and trade secrets.
It is important to make it clear that expert knowledge and information, considered as generalized know-how, does not receive legal protection.
Why protect industrial secrets?
Well, industrial secrets can be an excellent strategic tool for any business. So, ensuring the confidentiality of information and data that can ensure some competitive advantage is, without a doubt, an interesting and necessary action.
This protection is often used by technology that cannot be protected by a patent.
The goal of those who invent products, such as Coca-Cola, is to ensure that they remain protected for a much longer period than, for example, the term of a patent. Thus, by protecting these industrial secrets, the owners prevent the main information from being disclosed to the public.
How is industrial secret protection carried out?
Industrial secrets are protected by contract, whether in commercial relations with suppliers and customers, or in the company’s internal relations with investors, consultants and employees. In cases where the confidentiality agreement is violated, the company has the full right to adopt measures in the criminal and civil spheres, but cannot prevent the exploitation of its creation.
It is worth noting that industrial secrets do not require legal procedures; only certain measures are taken to prevent disclosure. Regarding the duration of protection, this lasts as long as the owner is able to keep the secret, and the protection of industrial secrets does not prevent third parties from using it
What are the main industrial secrets kept under lock and key?
See below which are the main industrial secrets that are very well protected from competitors!
McDonalds
Nobody knows what the “special sauce” of the world’s largest fast food burger chain is. This is a secret kept deep in McDonalds’ trunk. The meat used in the burgers is also another secret linked to this famous company.
Coca-Cola
Who knows how Coca-Cola is made? There’s no point in looking at the label of the soda, because it only shows the ingredients used in its production. But the correct order and quantities are in a secret recipe that is kept under lock and key. All this is done to prevent competitors from imitating its flavor.
Google
Do you have any idea why Google search results are so fast? Well, we don’t know either. The fact is that there is an extremely powerful algorithm behind the site’s searches, however, the code of this algorithm is a big mystery to everyone. After all, no one at Google wants the secret to be shared with third parties.
Apple
Have you ever stopped to think about the amount of rumors that exist about Apple products? Do you know why this happens? Because no one has access to information about the devices manufactured. Obviously, the brand’s employees know what they are producing, but the more confidential the project, the greater the restrictions on access to it.
What are the main advantages of opting for industrial secrecy?
See below the main benefits you have when opting for industrial secrecy!
The duration of the monopoly is unlimited
We can say that this is the main reason why companies opt for industrial secrecy. When a creation is submitted for patent registration, in most cases, there is a 15 or 20-year monopoly period in which to receive economic benefits from intellectual property. When the subject is an industrial secret, this does not happen, because the monopoly is maintained until the creation is discovered.
There is no need to make the technology public
A very positive point is that there is no need to make the technology public. The creation, in the normal process of registering an invention, becomes public, even if the company has total exclusivity over it.
There is no registration fee
Well, there is no registration fee to ensure the protection of your creation by industrial secrets. Of course, the company, when opting for it, will also incur costs to keep the innovation confidential. Among the measures necessary for this are good contracts, confidentiality agreements and internal policies.
Is it possible to register an industrial secret?
This is exactly where the differences between industrial secrets and other types of protection come in. When a patent is published, for example, all data and information about the invention are disclosed; however, the property is protected from unauthorized copying for the entire period of validity, which is 15 or 20 years, depending on the type.
Now, when we talk about industrial secrets, the creation is confidential. Therefore, there is no procedure for registering the secret itself. However, there are techniques that are commonly used by companies.
Most of the time, confidentiality agreements are drawn up to formalize protection. Thus, all members who will have access to the invention information sign the contract. Many companies define a limited number of people who will have access to the industrial secret precisely to prevent its leaking.
Therefore, it is important to make it clear that the legal protection of industrial secrets occurs through contracts that can be signed both between the company and its internal employees, such as consultants, employees, freelancers who provide services and salespeople, as well as between its external audience, such as suppliers. In addition to these contracts, it is important to highlight that the law also provides for some essential security measures, which allow the judiciary to authorize the prevention or suspension of any action that is being carried out with improper use of industrial secrets.
However, the law places a limit on this protection. It authorizes compensation for damages suffered by the company due to the use of confidential information, but it cannot recover damages from the market. Therefore, the competitive advantage that this information gave the business is not recovered.
This is why the legal protection of contracts can never be considered in isolation. Some tools, such as passwords, training, specific software, agreements between employees and good internal practices also need to be part of an internal policy to ensure the protection of the company’s information and data.
An important tip: to successfully protect your industrial secret, it is essential that the instruments that establish confidentiality determine fines when data and information are disclosed. It is always best to have the assistance of a specialized company to analyze the most advantageous protection option to protect the invention and safeguard the interests of the company.
Personalized consultancy to guarantee industrial secrecy
As with all legal documents, it is best for the industrial secret protection contract to be drawn up by specialized and qualified professionals.
By doing this, you ensure that the document is written correctly, avoiding errors and ambiguities and leaving all points clearly defined. After all, the confidentiality agreement must specifically identify what information and data will be protected.
Through a specialized company, you will have a contract that truly complies with the specific needs of your case. A well-drafted contract that includes essential and necessary details will eliminate the risk of leaking confidential information and serious problems that could occur due to carelessness.
VILAGE, for example, has specialized and qualified professionals to prepare industrial secret protection contracts, ensuring total security for your confidential information.
VILAGE’s focus is excellence in services, with experienced and specialized professionals to carry out all processes with total care and safety.
Furthermore, ensuring personalized service to customers, always considering each person’s needs, is also among our priorities.
Our services are all certified by BSI Brazil in the requirements for operating the Quality Management System in accordance with ISO 9001.
Frequently Asked Questions
The big difference between these two types of protection is that, in the case of a patent, the knowledge will inevitably become public, since the exclusivity granted to the creation is temporary.
In terms of industrial secret protection, knowledge will only become public domain when there is a data or information leak. However, to keep all proprietary information confidential, several precautions must be taken.
There is a possibility of information about the invention being leaked if confidentiality is not handled strategically and appropriately. If the information is disclosed inappropriately, it will be necessary to resort to legal proceedings in order to prove that the company or person was, in fact, the owner of the invention.
Well, industrial secrets are used for a few purposes:
- Protect an invention through means other than patent protection;
- Ensure that a design or creation will not be disclosed to the public before it is applied for by industrial design or patent;
- Protect valuable commercial information and data that is not formally protected by other intellectual property rights.
Yes, and they vary from country to country. There are some general standards that are in the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights). In short, the information must:
Have commercial value, as it is a secret;
Be secret, i.e. not known or easily accessible;
Be subject to certain measures by the legitimate owner to keep the information secret (for example, through confidentiality agreements).
