IP Tech Knowledgy

When drafting confidentiality clauses — especially as part of a transaction — consider adding exceptions to the non-disclosure obligation to anticipate how certain information might need to be used after the transaction. Sometimes in the normal course of its activities, a business will need to disclose how it operates or what its significant contracts may be. A confidentiality agreement could anticipate what particular information may be disclosed, how the parties maintain reasonable control over who is privy to the information, and under what conditions a third party can have access. With this foresight, neither party would have to go back to the other – or even hunt down the other who is not readily available -- to obtain special permission to disclose what could have been anticipated and dealt with in the document when first drafted. For example, although the parties may not want the particulars of a real estate lease or a software license generally disclosed, there may be times, such as for potential financing, where it would normally be appropriate to disclose to a lender the details of the lease, license, or other transaction. Other potential caveats for disclosure could be disclosures for the purposes of protecting an invention, disclosure for the purpose of maintaining and upgrading software and cloud-based systems, and providing operational data for a third party to anonymize and develop new algorithms and strategies. The third-party recipient of any of this information should in turn be obligated not to disclose the information further. 

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