Confidential Information

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The term ‘confidential information’ is synonymous with terms such as ‘trade secret’, ‘proprietary knowledge’, ‘know-how’ and ‘industrial secrets’. Confidential information can be an extremely valuable asset.

Keeping information secret may be an appropriate strategy in certain circumstances. For example, it may be appropriate when the construction, manufacturing process or formulation of a product is difficult copy, or when reverse engineering is unlikely. It may also be a necessary form of protection if, for example, a key invention cannot be protected by a patent.

However keeping information out of the public domain can be logistically difficult and may necessitate extreme vigilance. It may include actions such as physical barriers restricting access to manufacturing plants, electronic security on key documents and contractual fetters on any person handling the confidential information. In particular, confidentiality may be difficult and expensive to maintain over long periods or when a large number of people, such as employees, contractors and consultants must be made privy to the confidential information. Employers can be particularly vulnerable to loss of control of confidential information when employees leave their employment.

Furthermore, mere possession of confidential information does not stop anyone else independently establishing the same confidential information.

Like most countries, Australia has no system of registration of confidential information, and no legislation specific to protection of confidential information per se. Depending on the factual circumstances, enforcement of rights in confidential information typically falls under competition legislation or common law relating to contracts.

.smoorenburg. can assist you with advice how to protect confidential information, including confidentiality agreements for the protection of intellectual assets.