How long should a confidentiality obligation for trade secrets last?
It can run for as long as the information stays a trade secret. A trade secret is protected precisely because it is secret and valuable, with no fixed expiration date , so a clause tied to that status captures the full protection available. When misappropriation is enjoined, an injunction generally terminates when the secret ceases to exist, but may continue for a reasonable period to eliminate a commercial advantage from misappropriation . Contract duration and statutory remedies are distinct: a shorter contractual term does not automatically extinguish an otherwise available statutory claim.
Federal and state trade-secret law define a trade secret by two conditions that are about secrecy, not time: the owner takes reasonable measures to keep the information secret, and the information has independent economic value because it is not generally known. Nothing in the definition sets a term of years.
Because protection is measured by status rather than by a clock, a status-bounded clause — protecting the information for so long as it remains a trade secret — avoids a contractual expiration date for information that still qualifies as a trade secret. Its enforceability still depends on governing law and the clause’s scope. That is the formulation the model survival clause in the OpenAgreements confidentiality and invention-assignment agreement uses. A shorter fixed term can also be valid — see below.
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The federal DTSA defines a trade secret by two secrecy-based conditions — reasonable measures to keep the information secret, and independent economic value from not being generally known — with no fixed durational term, so protection lasts as long as the information remains secret.
the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information
See 18 U.S.C. § 1839(3)(B).
UTSA § 2(a) ends injunctive protection when trade-secret status ends: an injunction shall be terminated when the trade secret has ceased to exist, subject only to a limited additional period to eliminate residual commercial advantage.
Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
See Unif. Trade Secrets Act § 2(a) (1985), enacted as Wash. Rev. Code § 19.108.020(1).
Can you use a fixed term, like two or three years, instead?
Yes. A fixed term can be enforceable, but its duration alone does not establish validity: governing law, the information covered, and the restriction’s practical effect still matter. Expiration ordinarily ends the contractual duty it limits. Independent trade-secret claims require a separate analysis: federal law asks whether the information meets the statutory definition of a trade secret and whether it was misappropriated . A contract’s expiration therefore does not, by itself, answer whether such a claim survives. To give routine disclosures an end date while protecting genuine secrets for longer, consider separate periods — for example, five years for other confidential information and for so long as the information remains a trade secret for trade secrets — subject to applicable law.
Trade-secret protection ends only when the information stops being secret — when it becomes generally known or readily ascertainable. A fixed term can end the contractual protection before trade-secret status ends. Whether a statutory claim survives depends on its own elements, including secrecy measures and whether the challenged acquisition, use, or disclosure is improper.
The mirror image matters too: protection is not lost merely because time passes on the contract — it is lost when secrecy is lost. A status-bounded clause asks is it still a secret?; a fixed term answers a different question — how many years do we want to commit to? Both are legitimate drafting choices; they simply optimize for different things.
In practice, published agreements span the full range. Many keep confidentiality alive for as long as the information stays secret, and some run it indefinitely; a smaller group sets a hard two- or three-year cap that sweeps trade secrets in with everything else — letting contractual protection lapse while the secret, and the law's protection behind it, is still alive. A few split it explicitly, running ordinary confidential information for a fixed number of years but trade secrets for so long as the information remains a trade secret. You can compare how a sample of widely used forms handle the point on the confidentiality and invention-assignment benchmark.
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Trade-secret protection terminates once the information is no longer sufficiently secret; information that has become readily ascertainable from public sources is in the public domain and its use cannot ground liability.
If the information has become readily ascertainable from public sources so that no significant benefit accrues to a person who relies instead on other means of acquisition, the information is in the public domain and no longer protectable under the law of trade secrets.
See Restatement (Third) of Unfair Competition § 39 cmt. f (Am. L. Inst. 1995).
The DTSA created a federal private civil action for trade-secret misappropriation, layering national uniformity on top of the state-enacted Uniform Trade Secrets Act.
An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.
See 18 U.S.C. § 1836(b)(1).
Why not just make it indefinite or perpetual for everything?
Because a confidentiality clause that runs forever over everything — not just genuine trade secrets — invites a court to treat it as a disguised, unbounded non-compete and refuse to enforce it. Courts have already struck overbroad confidentiality agreements that lock a person out of an entire field, holding they operate as a de facto non-compete , and have refused to enforce non-disclosure agreements that sweep so broadly they reach ordinary knowledge and skill .
The problem is not perpetuity as such — a genuine trade secret can be protected indefinitely because it stays secret. The problem is a bare indefinite obligation that is not tied to trade-secret status and reaches far beyond real secrets. In Brown v. TGS Management, a California appellate court held that confidentiality provisions broad enough to bar the employee from his profession functioned as an unlawful restraint on competition.
The First Circuit reached a parallel result in TLS Management v. Rodríguez-Toledo, refusing to enforce non-disclosure agreements that were not confined to protectable trade secrets.
How aggressively a court polices this varies by jurisdiction — the risk is sharpest where state policy strongly disfavors restraints on competition, as in California — but the cure is the same everywhere: bound the obligation. A reasonable fixed term is one way to bound it; tying it to trade-secret status is the other, and the one that also preserves the full life of a genuine secret. A clause that protects information for so long as it remains a trade secret is bounded by the very thing the law protects — so it can last as long as the secret does without collapsing into a non-compete.
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A California appellate court held that confidentiality provisions broad enough to bar the employee from working in his field operated as a de facto non-compete and were void as an unlawful restraint on competition.
Collectively, these overly restrictive provisions operate as a de facto noncompete provision; they plainly bar Brown in perpetuity from doing any work in the securities field, much less in his chosen profession of statistical arbitrage.
See Brown v. TGS Mgmt. Co., LLC, 57 Cal. App. 5th 303 (2020).
The First Circuit refused to enforce non-disclosure agreements that were so broad they reached beyond protectable trade secrets, functioning like a non-compete.
We reverse because TLS failed to satisfy its burden to prove the existence of trade secrets, and because the nondisclosure agreements are so broad as to be unenforceable.
See TLS Mgmt. & Mktg. Servs., LLC v. Rodríguez-Toledo, 966 F.3d 46 (1st Cir. 2020).
Is this rule uniform across the country?
Substantially, yes. The federal Defend Trade Secrets Act gives trade-secret owners a nationwide civil cause of action , and it sits on top of the Uniform Trade Secrets Act, which 48 states plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have enacted. Every one of these regimes defines a trade secret by secrecy status, so the durational touchstone — protection lasts as long as the information stays secret — is the same almost everywhere.
Because the federal and uniform definitions share the same secrecy-based test, a status-bounded confidentiality clause tracks the law in nearly every U.S. jurisdiction at once, but scope and enforceability still require review under the applicable state law.
Two jurisdictions sit outside the Uniform Trade Secrets Act: New York applies common-law trade-secret doctrine, including the secrecy inquiry in Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 407 (1993), and North Carolina protects trade secrets under its own Trade Secrets Protection Act, N.C. Gen. Stat. § 66-152(3). Ashland treats secrecy as the threshold inquiry ; North Carolina’s definition requires commercial value from secrecy and reasonable efforts to maintain it. A status-bounded formulation can track those secrecy requirements without resolving every jurisdiction-specific enforceability question.
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The DTSA created a federal private civil action for trade-secret misappropriation, layering national uniformity on top of the state-enacted Uniform Trade Secrets Act.
An owner of a trade secret that is misappropriated may bring a civil action under this subsection if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.
See 18 U.S.C. § 1836(b)(1).
Ashland Management Inc. v. Janien holds that a trade secret must first of all be secret, and that whether it is secret is generally a question of fact.
As these considerations demonstrate, a trade secret must first of all be secret: whether it is is generally a question of fact (see, Kaumagraph Co. v Stampagraph Co., 235 NY 1, 8-9 ; Union Kol-Flo Corp. v Basil, 64 AD2d 861, 862 ; Chevron U.S.A. v Roxen Servs., 813 F2d 26, 29 [2d Cir]; 1 Milgrim, Trade Secrets § 2.03, at 2-32, 2-48 — 2-49 [1993]).
See Ashland Mgt. Inc. v. Janien, 82 N.Y.2d 395, 407, 624 N.E.2d 1007 (1993).
What does a two-track clause look like?
A two-track survival clause: ordinary confidential information stays protected for a fixed number of years after the relationship ends, but trade secrets stay protected for so long as they remain trade secrets under applicable law. Federal law makes a trade secret depend partly on the owner continuing to take reasonable measures to protect its secrecy , so a clause that protects the information for exactly as long as it stays secret both matches the statute and counts as one of the reasonable secrecy measures it looks for.
This is the formulation the OpenAgreements confidentiality and invention-assignment agreement uses: its survival clause runs trade-secret confidentiality for so long as the information remains a trade secret under applicable law, rather than defaulting the trade-secret track to a bare fixed term or a bare indefinite one. The duration tracks continued trade-secret status. The protected-information definition, permitted uses, and other restrictions still need review to avoid an overbroad restraint. From there it is a business call: floor the trade-secret track with a minimum number of years (whichever is longer) if the applicable law permits that additional commitment, or consider a fixed term if you wish to limit the contractual duration. Neither formulation guarantees enforceability or extinguishes independent statutory claims.
“the owner thereof has taken reasonable measures to keep such information secret”
A drafting note on remedies versus contract: the Uniform Trade Secrets Act rule that an injunction ends when the secret ceases to exist is about court-ordered relief, not the wording of your clause. An injunction may continue for a reasonable period to eliminate a commercial advantage from misappropriation even after secrecy ends . Contract duration, surviving damages claims, and the duration of injunctive relief therefore should not be treated as identical.
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Federal law conditions trade-secret status on the owner taking reasonable measures to keep the information secret, so a status-bounded confidentiality clause both tracks the statute and is itself a reasonable secrecy measure.
the owner thereof has taken reasonable measures to keep such information secret
See 18 U.S.C. § 1839(3)(A).
UTSA § 2(a) ends injunctive protection when trade-secret status ends: an injunction shall be terminated when the trade secret has ceased to exist, subject only to a limited additional period to eliminate residual commercial advantage.
Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
See Unif. Trade Secrets Act § 2(a) (1985), enacted as Wash. Rev. Code § 19.108.020(1).
What does federal law require an employee confidentiality agreement to say about whistleblowers and pay?
An employee confidentiality, non-compete, or invention assignment agreement signed or updated now that governs trade secrets or other confidential information must give the Defend Trade Secrets Act whistleblower-immunity notice, and for employees the National Labor Relations Act covers, Section 7 of that Act protects concerted activity, including joining together over pay and working conditions, that a broad confidentiality clause can restrict. The employer may satisfy the notice duty by cross-referencing a qualifying policy document provided to the employee, but an employer that omits the notice may not be awarded exemplary damages or attorney fees under the Defend Trade Secrets Act in an action against an employee who was not given notice.
The notice describes a federal immunity: an individual cannot be held liable under federal or state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal. For an agreement signed or updated now, the duty to give that notice reaches any agreement with an employee that governs trade secrets or other confidential information, whatever else the agreement does.
Section 7 gives employees the National Labor Relations Act covers a statutory right to engage in concerted activity for mutual aid or protection, including joining together to improve pay and working conditions. For employees the Act covers, the Board's work-rule standard adopted in 2023 makes a rule presumptively unlawful if it has a reasonable tendency to chill employees from exercising their Section 7 rights; an employer can rebut that presumption only by showing a legitimate and substantial business interest it cannot serve with a more narrowly tailored rule. The 2023 standard may change, but the Section 7 right it enforces is statutory. State law may add its own requirements for the same clauses.
A form carried over without the immunity notice, or a cross-reference to a reporting policy the employee never received, leaves the confidentiality clause without a valid notice, so the Act's exemplary damages and attorney fees are unavailable against that employee. A Confidential Information definition that sweeps in pay and working conditions with no carve-out exposes the employer to an unfair-labor-practice finding for employees the Act covers.
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An individual is immune from criminal and civil liability under federal and state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— (A) is made— (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
See 18 U.S.C. § 1833(b)(1).
An employer must give notice of the trade-secret whistleblower immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
See 18 U.S.C. § 1833(b)(3)(A).
An employer complies with the notice requirement by cross-referencing a policy document, provided to the employee, that sets out the employer's reporting policy for a suspected violation of law.
An employer shall be considered to be in compliance with the notice requirement in subparagraph (A) if the employer provides a cross-reference to a policy document provided to the employee that sets forth the employer's reporting policy for a suspected violation of law.
See 18 U.S.C. § 1833(b)(3)(B).
An employer that does not give the required notice may not be awarded exemplary damages or attorney fees in a trade-secret action against an employee who did not receive it.
If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees under subparagraph (C) or (D) of section 1836(b)(3) in an action against an employee to whom notice was not provided.
See 18 U.S.C. § 1833(b)(3)(C).
Section 7 gives employees the right to engage in concerted activities for mutual aid or protection, the statutory basis for keeping discussion of pay and working conditions outside confidentiality restrictions.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
See 29 U.S.C. § 157 (NLRA § 7).
The National Labor Relations Board protects the right of private-sector employees, with or without a union, to join together to improve wages, benefits, and working conditions.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.
See NLRB Office of Public Affairs, news release of Feb. 21, 2023 (agency mission statement).
Under the work-rule standard the Board adopted in 2023, a rule with a reasonable tendency to chill employees from exercising their Section 7 rights is presumptively unlawful unless the employer proves a legitimate and substantial business interest it cannot advance with a more narrowly tailored rule.
Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
See Stericycle, Inc., 372 NLRB No. 113 (2023); NLRB Office of Public Affairs, Board Adopts New Standard for Assessing Lawfulness of Work Rules (Aug. 2, 2023).