Is Intellectual Property Confidential Information?

[Peter6]

Is IP (not patented intellectual property) default confidential information during commercialization even no non-disclosure agreement is signed?

 

[Peter6]

I have find out following explanation of confidential information "Information is conveyed in confidence when one party (Confider) imparts the information to another (Confidant), on the express or implied understanding that the information is for a restricted purpose".
(Breach of confidence at Common Law | Office of the Information Commissioner Queensland

Based on this, can I say that the sensitive information provided during commercialization process is implied for restricted purpose?

 

[Sophea]

Hi Peter6,

Short answer, no. What kind of IP are we talking about? Did the other person disclose the information to a third party? Or are they seeking to use and exploit the IP themselves?

You might be able to argue that that commercially sensitive information that you shared with another person in the course of commercialisation was impliedly considered to be confidential. However if you are required to prove this to a court in order to sue someone for disclosing your information to a third party, it will be up to the court to decide whether an implied obligation of confidence arises based on the evidence you can present with and what the other party has to say in their defence.

On the other hand, if you are asking the question because you are considering whether to get the other party to sign a non-disclosure agreement before disclosing commercially sensitive info to them - don't risk it! Use a non-disclosure and non-circumvention agreement! Then the other party knows where they stand it is much easier to enforce your rights.

 

[Peter6]

They are about a few inventions I exposed to the company during commercialisation. The company used them in their recently released product. I have evidence on that I showed the company the sensitive information and evidence on that they are applied in their product.

In what kind of circumstance can the company argue that this information can be considered not confidential and it can be used it in its products?

Is the only way the compay can argue is that this information can be obtained from the public domain, otherwise, they are implied as confidential information?

 

[Sophea]

Hi Peter6, yes once information is in the public domain it can no longer be confidential information. This includes when you apply for a patent - you must make public disclosure of your inventions and so once you lodge a patent application your information is no longer confidential, so if you don't have a non disclosure agreement in place, there's pretty much nothing you can do.

There were 6 things outlined in the case of Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd that are relevant to determining whether a trade secret is confidential;

• the extent to which information is known outside your business;
• the extent to which the information was known by others involved in your business (and the precautions you took to guard the secrecy of the information);
• the value of the information to you and to your competitors;
• the amount of effort or money expended by you in developing the information; and
• the ease or difficulty with which the information could be properly acquired or duplicated by others.

As I said earlier it will be up to a court to decide whether or not, based on these 6 factors, your inventions constitute confidential information. If you believe you have suffered significant loss as a result of the other company exploiting your ideas, speak with an IP lawyer about your prospects of suing.