{ "type": "practice-guide", "canonical": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration", "links": [ { "rel": "self", "href": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration.json", "type": "application/json" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration", "type": "text/html" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration/markdown", "type": "text/markdown" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration/json", "type": "application/json" } ], "data": { "topic": "trade-secrets", "state": "confidentiality-duration", "frontmatter": { "title": "How Long Should a Trade-Secret Confidentiality Obligation Last?", "description": "Trade-secret law protects information for exactly as long as it stays secret, so a confidentiality obligation drafted to run perpetual-while-a-trade-secret captures the full protection the law allows. That status is a ceiling, not a required floor: a shorter fixed term (say, five years) is still enforceable — it just gives up protection the law would otherwise provide. What courts strike is the opposite mistake — a bare indefinite obligation that sweeps past genuine trade secrets and reads as an unbounded, de facto non-compete.", "state": "United States", "lastReviewed": "2026-07-04", "license": "CC BY 4.0", "authors": [ "steven-obiajulu" ], "about": [ "Trade-secret confidentiality duration", "Defend Trade Secrets Act", "Uniform Trade Secrets Act", "Non-disclosure agreement drafting", "Perpetual while a trade secret" ], "relatedForm": { "slug": "openagreements-confidentiality-invention-assignment-agreement" }, "eyebrow": "Drafting Guide", "coverage": "U.S. (nationwide)" }, "questions": [ { "slug": "how-long-should-it-last", "label": "How long should trade-secret confidentiality last?", "heading": "How long should a confidentiality obligation for trade secrets last?", "answerText": "It can run for as long as the information stays a trade secret — that is the outer limit of what trade-secret law will protect. 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, the injunction likewise lasts only until the secret ceases to exist. You can always choose a shorter contractual term; you just cannot get trade-secret law to back a longer one.", "sources": [ { "id": "dtsa-1839-definition", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "18 U.S.C. § 1839(3) — Definition of trade secret (Defend Trade Secrets Act)", "citation": "18 U.S.C. § 1839(3)(B).", "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1839&num=0&edition=prelim", "proposition": "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.", "verbatimQuote": "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", "date": "2016-05-11", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-dtsa-1839-definition" }, { "id": "utsa-2a-termination", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "Uniform Trade Secrets Act § 2(a), as enacted (Wash. Rev. Code § 19.108.020) — Injunction terminates when the trade secret ceases to exist", "citation": "Unif. Trade Secrets Act § 2(a) (1985), enacted as Wash. Rev. Code § 19.108.020(1).", "url": "https://app.leg.wa.gov/rcw/default.aspx?cite=19.108.020", "proposition": "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.", "verbatimQuote": "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.", "date": "1985-01-01", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-utsa-2a-termination" } ] }, { "slug": "why-not-fixed-term", "label": "Can you use a fixed term like 2 to 3 years?", "heading": "Can you use a fixed term, like two or three years, instead?", "answerText": "Yes. A fixed term is fully enforceable — it just caps your protection below what the law would give. A trade secret can stay valuable for decades, so a two- or three-year term hands it to the world the moment the clock runs out, even though the law would still protect it. That is a business trade-off, not a legal defect. If you want a clean end date for routine disclosures and the full protection for genuine secrets, you can combine the two — for example, five years, or for so long as the information remains a trade secret, whichever is longer.", "sources": [ { "id": "restatement-39-cmt-f", "authorityType": "commentary", "tier": "lawyer-judgment-backed", "title": "Restatement (Third) of Unfair Competition § 39 cmt. f — Protection ends when secrecy ends", "citation": "Restatement (Third) of Unfair Competition § 39 cmt. f (Am. L. Inst. 1995).", "url": "https://www.wipo.int/wipolex/en/legislation/details/7478", "proposition": "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.", "verbatimQuote": "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.", "date": "1995-01-01", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-restatement-39-cmt-f" } ] }, { "slug": "why-not-indefinite", "label": "Why not a bare indefinite or perpetual clause?", "heading": "Why not just make it indefinite or perpetual for everything?", "answerText": "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.", "sources": [ { "id": "brown-tgs", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Brown v. TGS Management Co., LLC", "citation": "Brown v. TGS Mgmt. Co., LLC, 57 Cal. App. 5th 303 (2020).", "url": "https://www.courtlistener.com/opinion/4805583/brown-v-tgs-management-co-llc/", "deepLink": "https://www.courtlistener.com/opinion/4805583/brown-v-tgs-management-co-llc/#:~:text=Collectively%2C%20these%20overly%20restrictive,profession%20of%20statistical%20arbitrage.", "proposition": "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.", "verbatimQuote": "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.", "date": "2020-11-12", "pullQuoteLocator": "Collectively, these overly restrictive|profession of statistical arbitrage.", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-brown-tgs" }, { "id": "tls-rodriguez", "authorityType": "case-law", "tier": "primary-source-backed", "title": "TLS Management & Marketing Services, LLC v. Rodríguez-Toledo", "citation": "TLS Mgmt. & Mktg. Servs., LLC v. Rodríguez-Toledo, 966 F.3d 46 (1st Cir. 2020).", "url": "https://www.courtlistener.com/opinion/4769672/tls-mgmt-and-mktg-ser-llc-v-rodriguez-toledo/", "deepLink": "https://www.courtlistener.com/opinion/4769672/tls-mgmt-and-mktg-ser-llc-v-rodriguez-toledo/#:~:text=We%20reverse%20because%20TLS%20failed,broad%20as%20to%20be%20unenforceable.", "proposition": "The First Circuit refused to enforce non-disclosure agreements that were so broad they reached beyond protectable trade secrets, functioning like a non-compete.", "verbatimQuote": "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.", "date": "2020-07-21", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-tls-rodriguez" } ] }, { "slug": "is-this-uniform-nationwide", "label": "Is this rule the same across the country?", "heading": "Is this rule uniform across the country?", "answerText": "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.", "sources": [ { "id": "dtsa-1836-civil", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "18 U.S.C. § 1836(b)(1) — Defend Trade Secrets Act private civil action", "citation": "18 U.S.C. § 1836(b)(1).", "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1836&num=0&edition=prelim", "proposition": "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.", "verbatimQuote": "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.", "date": "2016-05-11", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-dtsa-1836-civil" } ] }, { "slug": "what-the-clause-looks-like", "label": "What does the enforceable clause look like?", "heading": "What does the enforceability-safe clause look like?", "answerText": "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.", "sources": [ { "id": "dtsa-1839-secrecy-measures", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "18 U.S.C. § 1839(3)(A) — Reasonable measures to keep the information secret", "citation": "18 U.S.C. § 1839(3)(A).", "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1839&num=0&edition=prelim", "proposition": "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.", "verbatimQuote": "the owner thereof has taken reasonable measures to keep such information secret", "date": "2016-05-11", "anchor": "https://openagreements.org/practice-guides/trade-secrets/us/confidentiality-duration#src-dtsa-1839-secrecy-measures" } ] } ] } }