Why is confidentiality important?
When you have an idea, or have developed an innovation that has not yet been protected (e.g., with a patent) then keeping the details confidential is your main form of protection. Indeed, if you wish to gain patent protection for your innovation, this can only be gained if the details have been kept confidential, as innovations in the public domain will not be regarded as ‘novel’ (one of the criteria for gaining patent protection). In addition, some knowledge (sometimes referred to as ‘know-how’), including trade secrets, can only be protected by keeping it confidential.
Innovations and know-how developed by employees during the course of their employment are likely to be owned by their employer. This means that it is normally acceptable to share the innovation among work colleagues, as they will be bound by confidentiality provisions in their employment contract. However, it is good practice to share sensitive material on a ‘need to know’ basis and ensure that all employees understand the importance of keeping information confidential. It is also important to be aware that not everyone you work alongside may be employed by your organisation (e.g., consultants, seconded workers, students, volunteers, agency staff), and therefore you should check their status before you disclose any confidential information to them.
Sometimes it is necessary for you to share your innovation or know-how with another person or organisation in order to discuss how it might work, obtain external expertise, determine whether another organisation wishes to collaborate with you to develop it further, or carry out an evaluation or trial in another organisation or setting, e.g., an NHS Trust.
Confidential disclosure agreements (CDAs), sometimes called non-disclosure agreements (NDAs), can be used to provide written evidence that the people you are speaking to, have agreed to keep your innovation confidential and have a legal obligation to do so, and you can take them to court if they breach this agreement.
Confidential disclosure agreement checklist
You should ensure that the agreement covers the following:
|Parties||These would normally be the employers of the people disclosing and receiving the information about an innovation or sharing ‘know-how’ (e.g., a company, an NHS Trust, a charity, a University). The address of the party should be the registered or headquarters address and it is helpful if the company registration number is quoted (if appropriate).|
|Definitions||Each word starting with a capital letter in the agreement should be defined so that it is clear what is meant each time that term is used in the agreement. For example, the term ‘Confidential Information’ should be explained at the start.|
|Description of information to be covered by the agreement||This is an important element to get right (e.g., technology related to the treatment of patients with diabetes).|
|Purpose||This is a crucial element of the agreement as this explains what the recipient can use the information for (e.g., they can use it to decide whether to collaborate with you, but not to generate income, say).|
|Coverage||An agreement can be ‘one-way’ where it only cover the disclosure of information from one organisation to another, or ‘two-way’ (sometimes called ‘mutual’) where it allows both organisations to share confidential information with each other.|
|Exclusions||These are conditions when the confidential information can be disclosed to others for a valid reason. For example, if the information gets into the public domain, then it is no longer confidential, and people can share it freely. For agreements with public sector organisations such as an NHS Trust, the Freedom of Information Act should also be included as this Act includes some reasons when confidential information can be disclosed.|
|Duration||How long the agreement is effective for (this should normally be at least 2-5 years, if not longer).|
|Consequences of termination||This should cover what happens if the agreement is terminated. For example, the recipient of your information must return all copies of it to you.|
|Notices||It is helpful to have a name/job title and an address to whom any notices about the agreement should be sent – especially if you work in a large organisation.|
|Law||The agreement should be covered by English law, ideally with exclusive jurisdiction of the English courts.|
How is a confidential disclosure agreement put in place?
Normally, the organisation that has developed an innovation will provide the confidential disclosure agreement and send it to the other organisation(s) they wish to share the innovation with. However, either party may draft the agreement provided it is acceptable to all parties.
The other organisation will raise any queries that they have about the terms of the agreement, and once the terms have been agreed in principle, they will be signed on behalf of each party to the agreement by someone authorised to sign legal agreements.
Is there anything else I need to think about?
- You should keep the signed CDA in a safe place!
- You should ensure that any information that you share with the other organisation is marked ‘confidential’.
- You should consider whether you need to disclose the full details of your innovation with the other organisation (even with a CDA in place) – don’t share any information that you don’t need to.
- You should keep records of any information that you share with others. This includes:
- keeping all relevant e-mails and letters
- recording if you have given any materials about your innovation (including prototypes) to the other organisation along with the date
- writing minutes for any meetings/discussions and sharing these with the other organisation.
- You should keep the details of your innovation in a safe place and should make colleagues in your organisation aware that they should not disclose the details of the innovation to anyone.