Last updated: August 17, 2026

What Determines the Strength of a Trade Secret?

Courts typically take into account six factors when determining whether certain information is a trade secret. The more information related to each of these factors is kept hidden, valuable, and elusive from others, the more likely courts would consider it to be a trade secret:

  1. To what extent information is known to those outside the business.
  2. How much employees and others involved with the business know.
  3. What security measures were taken to maintain secrecy.
  4. How valuable the information is to competitors.
  5. The amount of money and effort expended in developing the information.
  6. How easy it is for others to acquire the information.

Looking at these aspects, many business practices can be analyzed with a more critical focus with respect to trade secret protection: Is it wise to store your technical data on the "cloud" such as Amazon®, Google™, or Microsoft® products? Does it make sense to reduce your laboratory notebooks only to electronic formats that cannot be "locked"? Is it advantageous to employ technicians or consultants without non-compete agreements or non-disclosure agreements ("NDAs")? The answers, of course, are "it depends," but do not overlook these and other questions before presuming that your technology is protected by trade secrets.

Something that must be taken into consideration as well now is sharing trade secrets with AI. Unless the platform or tool used has specific confidentiality protections in place, disclosing information to AI is equivalent to sharing such information to the public. Therefore, as with operating any powerful tool, caution should be exercised.

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