IP Tech Knowledgy

Think broadly when considering how the term “Confidential Information” is defined in a confidentiality or nondisclosure agreement or clause. Confidential information is not merely what one party specifically provides to the other. Because information may sometimes be learned passively, an agreement should also maintain confidentiality for information that one party may learn about the other in performing its obligations under the relevant agreement. Another good catchall is to state that “Confidential Information” includes information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Unless there is a specific reason why confidential information can only be protected if actually marked as confidential, it is risky to require a marking unless everyone who provides information will be diligent in marking it, and information that the other side could obtain passively merely by performing their duties is also marked confidential.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com