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Bio Technology : October 2009
36 Australasian BioTechnology Volume 19 • Number 3 • October 2009 AusBioFEATURE By David Smith and Matthew Craven, Corrs Chambers Westgarth Protecting intellectual property using confdentiality agreements Organisations engaged in innovation in the biotech sector in Australia and South-East Asia often fnd that they need to disclose details of their confi- dential work to prospective ‘partners’ in the larger economies of Europe and the USA. They frequently have a need to divulge confdential information such as test data and reports, and other information relating to proprietary technologies. Of course, in many cases they also receive these types of sen- sitive information from others. This article provides tips on some important issues to consider before entering into a confdentiality agreement (also known as a ‘non-disclosure agreement’ or NDA). We use the term 'disclose' to describe the entity giving access to confidential information, and 'recipient' to describe the entity receiving the information. Discloser If you are the discloser, or advising the discloser, you should consider the following: Define the 'confidential information' carefully -- • The definition of 'confidential information' should exclude information that is or becomes public knowledge (such as by the publication of a patent application), other- wise the agreement may be so unreasonably broad in its coverage as to be unenforceable. Also, it should provide that the information may be disclosed in response to a court order or mandatory government requirement, provided that the recipient takes all reasonable steps to maintain the confidentiality of that information and notifies the discloser as soon as practical. Poorly drafted definitions of 'confiden- tial information' sometimes have the effect that if the information is required to be disclosed to a court or a government body, the information ceases to fall within the definition at all. Finally, the discloser may wish to stipulate that not only the confidential information itself, but the fact of the existence of the confidential information, the fact that it is being disclosed to the recipient and the terms of the confidentiality agree- ment, are in themselves confidential information. Specify the purpose for which the confidential informa- • tion may be used -- The discloser should carefully specify the purpose for which the recipient may use the confi- dential information, and should expressly state that the information must not be used for any other purpose.