As related in earlier blog articles, a “living” intellectual property (IP) security policy involves more than just pre-hire actions and new hire orientation. IP security policy procedures must be visible and active in the ongoing work routines of management and employees. If an employer cannot demonstrate reasonable efforts to maintain secrecy, the business’s IP rights may be at risk of being compromised.
On The Job
Frequent and routine training in the company’s IP security policy should be conducted (and documented) for each employee. When new secrets are disclosed to an employee, non-disclosure agreements in place should be updated to record that disclosure. Doing so may help the employer defeat later claims by the employee that a particular disclosure was not included in the agreement or was not understood by the employee to be secret.
The employer should establish policies to restrict access to business secrets on a need-to-know basis. Data protection mechanisms and procedures should be put in place for office automation systems. Physical security should also be addressed, including document management actions such as marking, dissemination, and destruction. Additionally, an issue reporting and tracking discipline may not only provide an audit trail as proof of a living IP security policy, but also can engage all employees as active participants in IP security policy enforcement.
Upon Termination
When an employee is leaving the company, an exit interview may be a useful tool in safeguarding business secrets. For example, the exit interview should be used as an opportunity to reiterate the IP security policy to the terminated individual. As part of the interview, the company should collect written acknowledgement by the terminated individual of her responsibilities in keeping with all agreements executed during her employment. The employer should also request written acknowledgement that the terminated individual has returned all protected materials and tools to the employer. If the terminated employee’s new employer is a known competitor, the company may consider drafting a letter to the new employer outlining IP rights under prevailing statutes and applicable agreements.
