Protecting Technical Documents

[SteveA]

I work for a consulting company. For a very long time we have had no form of protection on our documents. These documents include specifications, memos, analysis, and other forms of technical documents. We are making strides to correct this.

Our main area of concern is our specifications, which have been put together through years of trial and error. However, researching the different kinds of legal protections available, I'm not sure any of them apply to us. What makes it even more tricky is that our documents are sent out for bidding process' which exposes them in full to many different parties.

Advice?

 

[SteveA]

This may not be the right forum..I appologize if that's the case. I don't want to violate any of your forum rules.

If you could simply piont me in any direction (whether its a better forum to post this message or a branch of IPRights to research) I'd appreciate it. Thank you...

 

[quincy]

You posted your question in the right place.

I, personally, don't have an answer for you, but someone will be along eventually to give you the advice you need. Divgradcurl, for instance, is one of the experts here but he is also a busy attorney, so he is not always able to answer questions immediately upon their posting. We are all volunteers and post when we have the opportunity.

Hang in there.

 

[divgradcurl]

I work for a consulting company. For a very long time we have had no form of protection on our documents. These documents include specifications, memos, analysis, and other forms of technical documents. We are making strides to correct this.

Our main area of concern is our specifications, which have been put together through years of trial and error. However, researching the different kinds of legal protections available, I'm not sure any of them apply to us. What makes it even more tricky is that our documents are sent out for bidding process' which exposes them in full to many different parties.

Advice?

What state are you in? This forum is for U.S. law only.

 

[SteveA]

My office is in Massachusetts...however, this is not our only branch.

 

[divgradcurl]

Just wanted to make sure you were in the U.S.

Bascially, although your documents are generally protected by copyright, for the types of documents you are talking about, it is generally more reliable to treat them as "trade secrets." You can google "uniform trade secrets act" for more information, virtually all states have laws that similar to the UTSA. The key to protecting trade secrets is that you must take reasonable steps to keep them secret -- if you are handing them out to other parties as part of a bidding process, they either need to be sent out under a confidentiality agreement or nondisclosure agreement, or you will likely lose protections. For example, if the bidding process is a public process, you can't both keep the documents secret AND put them out into the public. In that case, you will need to rely (insofar as you can) on copyright law to protect you.

In a private bidding situation, usually there is some sort of confidentiality agreement in place, which should be sufficient to be "reasonable" in keeping your trade secrets secret. In cases where there is no written confidentiality agreement, but the documents are not public, you may want to try and enter into a confidentiality agreement or nondisclosure agreement in order to maintain the secrecy of the documents.

Your best bet is to sit down with a lawyer, who can review your specific situation and guide you appropriately.

The advantage to maintaining documents as trade secrets is that it gives you an IP cause of action for theft of the trade secrets, even if the secrets are not otherwise protectible under patent, trademark, copyright, or contract law.

The other possibility is to simply do everything under a nondisclosure agreement, which can give you a contract cause of action for breach of the nondisclosure agreement. However, in a bidding situation, it may not be possible to get someone who is asking for bids to agree to an NDA prior to receiving a bid from you, so this may not really be workable.

 

[SteveA]

Thanks for the reply.

I guess to clarify slightly...our documents are used to design specifications for systems, their performance, types of equipment, warranty, etc. These documents are then sent to Owners for review, and sometimes operators of the facility which is being designed. After they review and everything is deemed satisfactory to the end goal, everything is sent to manufacturers to bid on the system. By the end of the process, multiple parties have read the documents in full and usually have copies - hard and/or soft.

Side Note: In this industry, people move from owner, to operator, to vendors (manufacturers), to consultants, and back! So just because our competition -- or future competition -- doesn't see these documents, doesn't mean they won't eventually. This is the reason we are seeking to protect ourselves...finally!

So yes, it is all very public with a high level of exposure. Even more so when it is for a public entity such as a state or federal client. Through my research, I could see two fields applying most to my situation: Know-how and Trade Secret. Both require total or reasonable efforts taken to maintain secrecy and confidentiality...which (knowing how we operate) is why I am unsure there is anything we can do.


Feel free to comment further now that I provided more information. Either way, thank you for your help.

 

[divgradcurl]

Nothing you have written suggests that these documents could not be protected as trade secrets under confidentiality agreements. But my advice to talk with an attorney, who can review all of the facts of your situation and advise you accordingly, still stands.