Tools Of The Trade (Secrets): Confidential Is Not Enough

Most companies say they protect their trade secrets. In practice, most protect confidential information instead, and the law treats those two things very differently. Confidential information is a broad category with some recourse. Trade secrets are narrower, protectible under the Defend Trade Secrets Act (DTSA) and state equivalents, but only if you have done the work to earn that protection. Courts do not reward companies simply for having confidential information; they reward companies for treating their most valuable information like it actually is their most valuable information.

If you are unconcerned about the distinction, that may be appropriate. Not every piece of confidential information warrants the overhead of full trade secret protection. But if you derive significant economic advantage from your confidential information, and the information at issue is your source code, your pricing algorithms, your AI training data, or your proprietary formulations, then calling it