Many of us in the trade secrets bar have long been proponents of enhanced trade secrets management. Especially with the enactment of the Defend Trade Secrets Act in 2016, the growing number of trade secrets cases being filed, the recognized increasing value of trade secrets in the eyes of businesses, and various new entrants to the market for managing and protecting trade secrets via technology (e.g., Tangibly) or insurance (e.g., Crown Jewel Insurance), it is easy to think that this message is getting through to businesses. In the last five to 10 years, several published studies from various sources showed abysmal rates for trade secrets management in companies globally. For example, a 2017 Baker & McKenzie study of more than 400 companies globally showed that only one third of companies, even large multinational companies, had taken comprehensive measures to protect trade secrets. And a 2019 study from Winston & Strawn of over 110 companies showed even more abysmal results, with less than 4% having formal trade secret protection policies and procedures. Surely, more than seven years later, things must have improved, right? Nope.
In January, Deloitte released the results from its first-ever Intellectual Property (IP) 360 Survey, conducted in 2023. A multidisciplinary collaboration within Deloitte, this survey questioned 57 IP leaders from companies of all different sizes and in various industries across the globe. The leaders hailed from 15 different countries, including 12 leaders from the United States. While it is worthwhile for any IP practitioner, especially, to read the full 60-page report (Deloitte IP 360 Survey | Deloitte UK), two takeaways from the report with respect to trade secret protection are of particular note. First, while most companies have some kind of structured management in place for IP assets such as patents, trademarks, and copyrights, there is a notable lack of similar structure or standardized approach, across the board, when it comes to how companies manage their trade secrets and know-how. Second, although every company that responded had various IP policies in place, too often those policies appeared to be siloed within the IP department and/or most often only communicated up the executive chain of command. Both findings indicate that there is still significant and important work to be done with regard to how companies and IP practitioners handle both the identification and protection of trade secrets as well as the more cultural aspects of how and when IP policies are disseminated (and to whom) and the extent to which employees are trained on IP, and specifically, trade secret protection.
