In the previous part of this series, we discussed common requirements for grant funding of R&D collaborations in the energy and resources space, and the need to consider these requirements and rules around tax concessions when planning an R&D investment. In this part, we consider practical strategies to prevent unauthorised disclosure of confidential information and avoid loss of valuable business assets.
Actively manage confidential information flows
Sharing of confidential information is a high risk point in energy and resources R&D collaborations. Mine layouts, mineral deposit compositions and key risk points may only be able to be protected as trade secrets; likewise for vital know how and access protections in the energy space. However, confidential information and trade secrets have value only for so long as they remain confidential.
Sharing commercially sensitive information is often necessary in order to enable research that is useful to your business and development that fits your goals and constraints. However, the more parties have access to proprietary information, the more likely that information is to find its way into the wrong hands, causing irreparable damage.
There are a number of measures available to minimise the risk of disclosure of confidential information, including:
- Ensure that confidential information is clearly marked – both in file names and on the documents themselves – and encrypted and/or password protected in an effective manner. There is little point password protecting a file and then including the password in the cover email attaching the file itself;
- Limit information to specific individuals who require it for the purposes of the particular project, and require those individuals to sign confidentiality deeds directly in favour of your company. Active measures should be taken to ensure those individuals understand the obligations they are signing up to, bearing in mind that academic teams will almost always include junior contributors, such as casual research assistants and students. If one of those individuals later exposes or threatens to expose your confidential information, a deed in favour of your company puts you in a better position to take action directly, without needing to rely on a partner institution;
- Prevent human error and physical disclosure: many a crippling data breach has occurred after someone left a USB behind on a plane, clicked a link in a phishing email, included an incorrect email address on a group email. Collaborations in the resources space in particular often require partner personnel to work on-site, creating further risk of inadvertent disclosure. Establish, document and enforce data security protocols across all collaboration participants – including within your own organisation. Practices that may be low risk in an internal context, such as emailing unprotected files, have a far higher risk profile where external parties are involved;
- Scrutinise the security credentials of cloud services used for the project, including by collaborators. Academics often use cloud-based platforms outside what is provided by their institutions, for convenience or personal preference. While the terms and conditions applicable to use of such services are rarely negotiable, some services have stronger policies and technologies than others; and
- Quarantine confidential information to a specific sub-project within a large-scale R&D collaboration, particularly where competitors, other industry participants or government entities are involved, as is often the case with major government-funded projects. If confidential information sharing is limited to sub-projects within a broader program, you can ensure that only your company and research organisations are involved in the relevant project.
In the next part of this series, we explore options for structuring the rights of collaborating parties to use and exploit results and developed IP arising from the project. If you missed the earlier parts of this series, you can find them here.
HWL Ebsworth’s intellectual property team has extensive experience assisting clients to maximise the value of their R&D investments. Please contact us to learn more.
This article was written by Luke Dale, Partner and Nikki Macor Heath, Senior Associate.