What Trade Secrets Are Not

In previous posts we’ve reviewed what trade secrets are and how they’re put at risk, but no discussion would be complete without addressing what trade secrets are not. 

Knowing what falls outside the scope of trade secret protection is just as important as knowing what falls within. Failing to see the difference can lead to wasted effort and costly battles over information that ultimately cannot be protected. When you understand where the lines are drawn, you can focus your efforts on what truly adds unique value to your enterprise.

There are three categories of information that generally do not qualify as trade secrets: 

• General knowledge or skills
• Obsolete information
• Public information

Let’s review each category and some of the key reasons why these types of information are often not protected

1. Trade secrets do not include general knowledge or skills. 

For example, knowledge of how to add macros to a spreadsheet or operate a 3D printer would not qualify as a trade secret. Even if an employee learned these skills at your expense while working at your company, you cannot claim your secrets are misappropriated if the employee takes those skills elsewhere. 

General industry knowledge and common skills are not protectable—and many disputes over trade secrets center on whether information constitutes general or specialized knowledge.

2. Trade secrets do not include obsolete information. 

As we saw earlier, a trade secret must derive competitive value from being kept secret. But competitive value does not necessarily last forever. If a trade secret stops providing a competitive advantage—like a pricing model that becomes outdated or a process that is discontinued—it may lose its trade secret status, no matter how carefully it is guarded. 

Companies need to keep an eye out for innovations that have gone stale and make sure that whatever replaces them receives sufficient protection.

3. Trade secrets do not include public information. 

Once information enters the public domain, the party’s over. Generally speaking, if information is shared on a website, in a trade journal, or in a white paper, it loses protection permanently. 

Public disclosure strips information of its trade secret status. This is true even if disclosure happens through no fault of its owner. 

Like a painting destroyed in a fire, once a trade secret is exposed, it is lost for good.

A Word on Terminology

Throughout this series, we’ll use several terms that are worth distinguishing. “Trade secret” refers to information that meets the requirements we’ve been discussing. In essence, trade secrets are information that gains business value from being secret and is subject to reasonable protections.

Confidential Information 

This category is broader, covering information that may or may not qualify as trade secrets but that a business keeps under wraps. Confidential information that does not rise to the level of a trade secret may still find protection under contract or other areas of law.

Proprietary Information 

“Proprietary” generally refers to information a company wants to maintain and exploit exclusively as its own private property. This concept emphasizes ownership and may include materials that reflect a company’s distinctive operations, records, or data.

Information Asset & Knowledge Asset

These umbrella terms encompass valuable business information of all kinds, including trade secrets, confidential information, and proprietary information. This book uses these terms frequently to underscore that information is a real-world asset that can add measurable value to a business.

Intellectual Property

Most broadly, “intellectual property” or “IP” refers to any legally protected creations of the mind, including patents, copyrights, trademarks, and trade secrets. In other articles we’ll discuss the requirements, advantages, and disadvantages for each area of intellectual property.

Putting Trade Secrets to Work

This series (and Maxwell’s book, Your Trade Secrets Are Easy to Steal!) focuses on trade secrets, but the tools and strategies presented here can be used to protect the full range of confidential and proprietary business information. 

Understanding these overlapping categories will help you communicate with clarity and choose appropriate protections, whether you’re talking to lawyers, employees, consultants, or business partners.

Once you understand where the lines are drawn, the next step is appreciating what trade secrets can do for your business. In the next article, we'll look at four advantages of trade secrets. When properly protected, these benefits can enhance your ability to compete, support confidentiality, and offer the flexibility that today's innovative work environments demand.