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What is public disclosure?

Public disclosure is when information which has been kept as a trade secret becomes generally known. When public disclosure occurs, the disclosed information is no longer entitled to trade secret protection - all trade secret rights are terminated. Public disclosure obviously includes direct disclosure, such as where the information’s owner publicly sells the product or publishes the information. However, public disclosure can also occur through indirect disclosure, such as where someone else obtains the information and offers it to the public. Such indirect disclosure destroys the trade secret’s protectability even if the disclosing party wrongfully obtained the information - while that party might be liable for trade secret misappropriation, the information has still been made public and can no longer be claimed as a trade secret (so once the cat is out of the bag, that’s it).

It should be understood that not all disclosures are considered public disclosures which kill a trade secret. For example, a company can disclose its trade secret to certain employees or partners, and if it takes adequate steps to protect that information’s secrecy (such as with a confidentiality agreement), the information will retain its trade secret status.