Beverly A. Berneman
Public information can’t be a trade secret because it’s, well, public. But a combination of public information arranged or organized in a unique, economically advantageous way, can be a trade secret. That’s what Diego DeAmezaga learned to his chagrin. Diego worked for AirFacts, Inc. a software company that licenses auditing software for air fare comparisons. Diego worked painstakingly and expertly to create flow charts that AirFacts used in its software development. When Diego left AirFacts, he attached the flow charts to his resume. AirFacts brought suit against Diego for trade secret misappropriation under the Maryland Uniform Trade Secrets Act (MUTSA). The Maryland District Court dismissed the complaint. The Fourth Circuit Court of Appeals reversed the dismissal. The Court held that the flow charts had independent economic value separate from the public information they contained. AirFacts had taken reasonable measures to keep the flow charts secret by requiring employees to sign confidentiality agreements and giving only a few employees access to certain accounts. So the public information in the flow charts were trade secrets.
WHY YOU SHOULD KNOW THIS. The beauty of trade secrets is that they can encompass a wide range of economically advantageous methods, formulas, business process etc. There’s even room from taking information that everyone knows or is readily accessible and finding new ways to use it. Mark Halligan, the trade secret law guru, calls this the “Combination Analysis”. When does the Combination Analysis qualify as a trade secret? The nuances are many and varied. Experienced trade secret counsel can help with the analysis.