Trade secrets audit and protection
Protection of trade secrets depends less on a standard clause than on reasonable, consistent and documented measures. The risks come from mobile employees, partners and suppliers, generative artificial intelligence, the cloud, remote working, visitors, data rooms and joint research projects. The trade secret audit turns valuable but diffuse information into identified, protected and provable assets.
The need
Articles L. 151-1 et seq. of the Code de commerce protect information that is not generally known, that has commercial value because it is secret and that is subject to reasonable protective measures. The third condition is the one on which companies fail in court: they cannot demonstrate the measures taken. The audit is designed to build that evidence before any dispute and to reduce the opportunities for leaks.
Deliverables
- An inventory and classification of confidential assets, with a taxonomy adapted to the company.
- A map of flows, access rights, third parties and moments of risk.
- A review of sample contracts and internal policies: employment contracts, confidentiality agreements, research contracts, contractor terms.
- A warning-signs report oriented towards evidence.
- A legal, organisational and technical plan.
- Training, an evidence file of reasonable measures and an annual checkpoint.
How we work
First, a diagnostic based on a fifty-point questionnaire and management interviews. Then a protection sprint that implements the priority corrections: register of secrets, clauses, joiner and leaver procedures, rules on the use of digital tools. Finally, an annual review that updates the inventory and the evidence file. The firm works with the company’s human resources, IT and security functions and, where useful, with its cybersecurity providers.
The incident and litigation side
Where misappropriation is suspected, the firm acts urgently: protective measures, bailiff reports, seizure, action before the Commercial Court or the Judicial Court, coordination with any criminal proceedings. The confidentiality protection measures provided for by the Code de commerce make it possible to debate sensitive documents without disclosing them. A prior audit makes these actions far more effective, because evidence of the secret and of the reasonable measures already exists.
Who it is for
Industrial, deeptech and biotech companies, software companies, groups with mobile research teams, companies engaged in research partnerships or data rooms, funds wishing to secure the information assets of a portfolio company.
A few matters that illustrate our practice
Embedded software: patents and trade secrets
Representation of an embedded software publisher in litigation concerning a mobility assistance technology. Work on patent infringement, trade secret protection and unfair competition claims before the Paris Judicial Court.
Chemistry: trade secret protection
Involvement in litigation concerning the protection of confidential information and know-how in the chemicals sector. Review of the documents and preparation of pleadings in interim proceedings.
Analyses and publications to go further
- Drafting a confidentiality agreement: a complete guide , analysis by the firm.
- Saisies-contrefaçons and trade secrets: developments in France since the 2018 reform, Matthieu Dhenne, Kluwer Patent Blog.
- Le droit de l’ingénierie inverse (the law of reverse engineering), L’Harmattan, 2021.
Frequently asked questions
Does trade secrecy replace the patent?
No. The two complement each other. A patent protects a disclosed invention for twenty years. A trade secret protects what is not disclosed, without time limit, but with no monopoly against independent discovery. The audit helps decide between the two for each asset.
What are reasonable protective measures?
A set of measures proportionate to the value of the information: identification, access restrictions, confidentiality clauses, marking, training, leaver procedures, traceability. The law sets no list: the audit builds one for the company.
Does the audit cover the use of artificial intelligence?
Yes. The rules for employees’ use of generative artificial intelligence tools are among the measures examined, as these tools are a frequent leakage channel.
Discuss your matter
To arrange a diagnosis, contact the firm.