It may seem an obvious point, but information which is put into the public domain cannot be made confidential by agreement.
A recent case was brought by a US company that developed an ingredient which, when added to plastics, assisted their biodegradation. The company entered into an agreement with a UK company under which the UK company manufactured the ingredient and sold it. The contract was subject to a confidentiality agreement as one would expect.
The UK company later marketed a very similar ingredient and this led to the lawsuit. The US company alleged that the UK company had copied the formulation of its additive in breach of their agreement, misused confidential information provided to them and passed off its products as being associated with those of the US company.
The US company lost, on the basis that the ‘new’ ingredient marketed by the UK company, whilst similar in composition, was not identical and the formula for it was in the public domain. It could not therefore be confidential. Information that is publicly available cannot be confidential and could not be made so simply because it was supplied in confidence. To accept the US company’s argument would mean that the UK company was the only one in the world not permitted to use the formula.
We can assist you in protecting your intellectual property and drafting appropriate NDAs.