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Software Scan

The President's Column

What is a trade secret, and in particular a software trade secret? I've already discussed patents and copyrights, so in this month's Scanning IP section I introduce the third kind of IP protection that is afforded software. In a future column I'll show the tradeoffs between patents and trade secrets.

In the Scanning Tools section, I'm announcing our online CodeSuite certification training. You can take it at your own pace at your own location and, for a limited time, the cost is only $500 (you have to provide your own lunch, though).

Send me your comments and critiques. I'm always interested in hearing from you.


Bob Zeidman
President, SAFE Corporation

Scanning IP

Software Trade Secrets

The precise language that legally defines a trade secret varies by jurisdiction, as do the particular types of information that are subject to trade secret protection. In the United States, different states have different trade secret laws. Most states have adopted the Uniform Trade Secrets Act, and those that don't, have laws that only differ by subtle differences.

There are three factors that are common to all definitions; a trade secret always has these three specific characteristics:

  1. It is not generally known to the public.
  2. It confers some sort of economic benefit on its holder, where the benefit is due to the fact that it is not known to the public.
  3. The owner of the trade secret makes reasonable efforts to maintain its secrecy.

With regard to software trade secrets, algorithms that are known to the public usually cannot be trade secrets, though some jurisdictions require not only that the information be public but that it be "readily ascertainable," meaning easily to find. For example, a sorting algorithm found in a well known textbook or in an application note on a high traffic website is, or can be, known to the public and easily ascertained.

There must be an economic benefit, so a sorting algorithm that can be easily replaced with a well-known sorting algorithm with comparable results is not a trade secret. Similarly if your company develops a program, perhaps as a side project, but does not sell it or incorporate it in any products, then it's not a trade secret.

If the owner of the source code allows programmers to share code, or does not put notices of confidentiality in the source code, or does not take reasonable steps to insure that employees do not take the code home with them, then that source code cannot be a trade secret. This third point is a particularly important reason to take precautions to ensure your software does not go somewhere it shouldn't. Make sure your employees, investors, and partners sign nondisclosure agreements (NDAs). Make sure you have written policies about how to handle source code. And make sure you treat all individuals and companies equally. You don't want to be in court, defending a trade secret, and have to explain why one "trusted employee" or "trusted friend" was allowed to take home source code while others were not. That doesn't look like "reasonable efforts to maintain secrecy."

Advanced Tools to Detect Software Plagiarism and IP Theft

A sophisticated set of tools for analyzing software source code and object code including:

Check binary object code for plagiarism.

Cross check source code for plagiarism.

Compare source code to find differences and measure changes.

The premiere tool for pinpointing copying.

Scour the Internet for plagiarized code.

Turbo charge your analysis on a supercomputer grid.

Get Smart

SAFE offers training at our facility or yours. Contact us to make arrangements:

MCLE credit in software IP

CodeSuite certification

Your New Office

Remember that you can now have your own secure office at the SAFE facility for storing proprietary software, running CodeSuite, analyzing the results, and getting onsite support. We're located at

20863 Stevens Creek Blvd.
Suite 456
Cupertino, CA 95014
(408) 517-1167

Scanning Tools

CodeSuite Certification Online

We are now offering CodeSuite Certification training online. The online training includes a prerecorded video of a live CodeSuite Certification class, class notes, and an exercise work book as well as all the example source code and the CodeSuite licenses needed to complete the exercises. For a limited time, the online class is only $500 and can be purchased on the SAFE training page. Successful completion of the course adds the trainee to SAFE's certified expert's web page, and he or she will receive a $500 credit toward the purchase of CodeSuite licenses.

This newsletter is not legal advice. Views expressed herein should be checked for accuracy and current applicability.
Copyright 2009 Software Analysis & Forensic Engineering Corporation