The practical answer to the possibility of recovering trade secret status is akin to the myth of Pandora's box: once it is opened it is nearly impossible to cram everything back in. From a legal standpoint, however, it is possible in certain situations to restore trade secret rights after improper disclosure. Doing so depends on the extent of the disclosure (the broader, the harder) and whether the recipients of the information acted improperly in using or disclosing the trade secrets.
Disclosing Trade Secrets
Someone is deemed to have acted improperly if they knew or had reason to know that the subject information belonged to another and was acquired by:
(1) improper means such as theft, bribery, breach of a duty, or inducement of a breach of duty of confidentiality, or espionage through electronic means;
(2) actions giving rise to a duty to maintain the secrecy or limit its use;
(3) receipt from a person who owed a duty of confidentiality to the subject information; or
(4) accident or mistake.
When any of these are found, there will be injunctive relief available, but only to a limited extent. For example, if someone innocently receives trade secret rights, it will be very difficult to enjoin the person from use or further disclosure of the trade secrets.
Trade Secret Protection
Trade secrets are not protected by the federal government, so all trade secret cases must be filed in state court and are subject to state law. The general rule is that you file in the state where the infringer resides. This ensures that any injunctions can be fully carried out. After the immediate filing and passing of a temporary injunction, your lawyer will prepare a case for a permanent injunction and compensation for any damages to your company from the infringement. If the infringement was intentional, then some states will also allow pursuit of attorney’s fees.
Unlike a patent, trade secrets are not protected from independent discovery. So, someone can legally purchase your product, take it home, and reverse engineer it. This is, in fact, how many trade secret recipes are discovered. If you are concerned about your trade secret going public and it has been less than one year since your product has been in circulation, you may wish to consider utilizing a patent instead of a trade secret. Patents give you exclusive manufacturing rights for 18 years, and this includes independent discovery. However, after the 18 years are up, anyone can manufacture your product.
Getting Help
If someone has revealed your trade secret, or is threatening to do so, contact an intellectual property attorney for a consultation.