Legal Definitions - proper means

In the context of trade secrets, proper means refers to any method of discovering or obtaining information that another party considers a trade secret, provided that the method does not violate any laws protecting property rights or established standards of commercial ethics. Essentially, it means acquiring knowledge about a competitor's secret in a fair, honest, and legal way, without resorting to theft, bribery, industrial espionage, or breaching a confidentiality agreement.

When a trade secret is discovered through proper means, the original owner typically loses the exclusive right to that information, as trade secret protection does not grant an absolute monopoly like a patent. The law aims to prevent the misappropriation of secrets, not to prevent their independent discovery or analysis through legitimate channels.

Here are some examples illustrating what constitutes proper means:

• Example 1: Analyzing a Publicly Available Product

  A cosmetics company launches a new anti-aging cream with a unique texture and scent. A rival cosmetics company purchases the product from a retail store, as any consumer would. Their research and development team then uses standard chemical analysis techniques to identify the active ingredients and their concentrations. They also conduct sensory evaluations to understand the texture and fragrance profile. This is an example of proper means because the rival company legally acquired the product and used publicly available scientific methods to analyze its composition, without any illicit access to the original company's internal formulas or processes.

• Example 2: Independent Development

  A technology startup is working on a new data compression algorithm. Unbeknownst to them, a larger, established tech company already uses a very similar, highly efficient algorithm that it guards as a trade secret. Through their own extensive research, experimentation, and coding efforts, the startup's engineers independently develop an algorithm that achieves comparable performance. This is considered proper means because the startup created the solution entirely on its own, without any knowledge of or access to the competitor's secret algorithm or confidential information.

• Example 3: Observation of Publicly Visible Operations

  A popular coffee shop chain is known for its incredibly efficient barista workflow, allowing them to serve customers very quickly even during peak hours. A competitor, interested in improving their own service speed, sends an employee to visit several of the chain's locations as a regular customer. While waiting for their order, the employee observes the layout of the counter, the placement of equipment, and the sequence of tasks performed by the baristas, all of which are openly visible to the public. Based on these observations, the competitor redesigns their own coffee shop layout and workflow. This is an instance of proper means because the information was gathered through casual, non-intrusive observation of publicly accessible business operations, without any deception, trespass, or breach of confidentiality.