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Join us Tuesday, December 18 at 3 PM (Eastern) for a “Campfire” discussion with the Data Protection Advisory Council. It’ll be a free webinar, featuring our presentation on Trade Secrets: an Essential Element of Your Intellectual Property Strategy.  Click here to register.

Companies generally have records of their intellectual property (“IP”) in the categories of patent, trademark, and copyright. But most overlook the value of their data that would qualify for protection as trade secrets. Because trade secrets don’t get registered with a government agency, they’re the red-headed stepchild in the IP family. Yet when your company assesses and documents its trade secrets, you enhance their protection against misappropriation. Gerry Elman and Josh Waterston of Elman Technology Law, PC, will show you a roadmap for making this a part of your comprehensive data protection strategy. They’ll tell you how to get the benefit of trade secret protection not only under longstanding local state law, but also under a comparatively new federal statute – the Defend Trade Secrets Act of 2016.

Gerry Elman speaks at the 2018 National CIO Government Technology Conference

At the National CIO Government Technology Conference held on Oct. 25, 2018 at the Pyramid Club in Philadelphia. Gerry Elman and Austin Morris of Morris Risk Management co-presented the lunch keynote on 'Cyber Security and Cyber Risk Management'. Josh Waterston also was an active participant in the event.

The CIO Government Technology Conference brought together leading CIOs, CISOs, and government IT executives from across the U.S. to confront and overcome current industry issues, cybersecurity, and cloud computing. The goal of the CIO Government Technology Conference was to create an environment where public and private sector executives could explore IT challenges and identify strategies to address short, medium and long term goals. And as a last-minute addition to the agenda, Betty Duroseau introduced an international panel which discussed sustainable development in Haiti, including implementation of the Internet of Things.

Download Gerry’s presentation on Mitigating Legal Risk from Cyber and Privacy Infractions using the form below.

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To send a message, please use the following box. Keep in mind that no attorney-client relationship is created through this communication, and this communication is not confidential. For a confidential consultation, please call us at (610) 892-9942.

Watch Gene Dolgoff’s video on The Importance of Patents

We are delighted to share with you this video by our client Gene Dolgoff. Gerry Elman helped him file his first patent application in 1968, which Gene mentions here. And we are honored to be helping protect the intellectual property for his latest inventions as well. Click the > PLAY button in the image to start the video.

Aug. 21, 2018: Join the Cloud Security Alliance for a free breakfast & networking event in Philadelphia

Cloud Security 101 – SMB Horror Stories and How to Avoid Them.

Date:  Tuesday, August 21, 2018 at 8 AM

Location:  WeWork, 1601 Market Street, Philadelphia, PA  19103

Click here to register

Gerry Elman and Josh Waterston are on the Board of CSA-DV and strongly support the goal of educating the public about cloud security.  Like many of our friends, we know first-hand the cybersecurity risks that small and medium-size businesses face every day.  Such businesses often have fewer staff and financial resources to apply to cybersecurity threats.  Going to “the Cloud” is a very tempting solution, with both risks and rewards.

Join us to learn more about Cloud Security from people who have been there and done that. Hear real stories, harrowing horrors, near misses and great successes from other SMB’s. Learn how you can securely leverage “the Cloud” for your digital and data landscape…  And make some great connections along the way.

We look forward to seeing you there!

The Laughable Non-Disclosure Agreement

Summary: Update Non-Disclosure Agreements (NDAs) to match the new digital reality. Businesses should be proactive to address outdated provisions in NDAs before problems occur.

Remember the olden days of fax machines? You’d receive a fax with a long disclaimer at the bottom, saying something like, “This fax may contain super-secret information which could endanger our company, our world, and even our universe, if it should fall into the wrong hands. If you receive this fax by accident, you must immediately return the fax to the sender, or we will send our goons to find and severely punish you.” The question is, how many people actually read and complied with these statements? Probably not many.

Faxes have now mostly given way to e-mail, and the “return” language has usually been replaced by “destroy” language along the lines of “If you receive this e-mail by accident, you must immediately destroy any printed copies by placing them in a safe and then dropping the safe into a volcano. Then throw your hard drive into the volcano for good measure.” But how effective is such language?

This brings me to a recent question by a company that’s been a client of this firm for many years. We had drafted a template Non-Disclosure Agreement (“NDA”) for them years ago, using language typical for that time. After the parties’ relationship ends, or within a specific timeframe, the NDA calls for the recipient of the confidential information to return it to the discloser. Now that information is generally transmitted digitally, rather than on paper, the client asked how to comply with the obligations created under these old NDAs. Good question!

The answer for existing NDAs is that the parties should desirably communicate before there are problems. My advice would be for the recipient to offer an addendum to the previous NDA, in which the parties mutually agree that it’s okay when physical copies of the confidential information have been returned by the recipient, and/or that digital copies have been destroyed, and if there are backup copies created in the recipient’s ordinary course of business, that they have not been accessed – and will never be accessed – in violation of the NDA.

Most NDAs that we currently prepare require that tangible versions of confidential information be returned, and that electronic versions be destroyed, and that the recipient certify this in writing. Some versions provide for an audit of these actions.

We also contemplate suggesting language regarding backups, so that an innocent party is not burned in the event of litigation. Imagine the exchange:

Mean Lawyer: “Didn’t you certify that you returned or destroyed this confidential information?”
Innocent Client: “Why yes, I did so right after volunteering at the homeless shelter and visiting my grandmother at the nursing home, like I always do.”
Mean Lawyer: “Then WHY did we find 1,000 copies of this super-secret confidential information scattered about on your backup drives and on 17 cloud services???”
Innocent Client: “Gulp!”

The takeaway: review your existing NDAs, to ensure that you’re not violating your obligations, and to ensure that your company’s confidential information isn’t scattered about. Contact us for advice (even by fax) before problems arise. It costs much less to prevent problems than to fix them!

Joshua D. Waterston, Esq.
Elman Technology Law, P.C.

Image credit: Topsecretsidebar.jpg, https://commons.wikimedia.org/w/index.php?title=File:Topsecretsidebar.jpg&oldid=187366443 (CC BY-SA 4.0)

2018 Martindale-Hubbell® Peer Review Rating of AV Preeminent® Gerry Elman has received a 2018 Martindale-Hubbell® Peer Review Rating of AV Preeminent®
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