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Lets say, a contractor did some work for a client in a specific industry (lets say hospitality) using a stack of very common software development tools and technologies. For example SalesForce in the back-end, ReactJS in the front-end; PowerBI for Reporting and Python for bits in between.

The contractor has an agreement with the client not to expose or steal trade secrets. The client claims that this (thin) combination of software is now unique to their industry and product and therefore that combination is a now a industry/trade secret (although they have offered no proof).

The contractor has no proof that no one else in the same industry is using the same software stack already. On the other hand the contractor chose that combination of software originally for the project because: (a) contractor was already accustomed to using some of this tech .. and (b) contractor noted that key parts (though not all) of that combination were already established for use in the industry (which is the whole reason why it was determined that it should be suitable for the client's project also)

The contractor chose the software combination after all agreements were signed, therefore the client never began the project with any indication that was their choice or their secret.

Motives:

Former client :: The non-compete with the client expires soon and so the likely recourse for the former client to prevent competition, is to claim that the contractor cannot use the same solution combination for developing a competing product for the industry.

Contractor :: The contractor has noted that the core of these tools (SalesForce and ReactJS) are already used in the industry and that the remaining parts are commonly used with the core even though its not necessarily for that specific industry. The contractor wants to continue using technologies that are well established and that he/she has invested time to learn and wants to keep working in the same industry where they have now gathered all that experience.


Is there any case law or examples that give a sense of how much of the burden of proof is on the client or how much the contractor needs to change their software stack in case the former client is actually correct?

Just assume that the judge is in the same conservative click as the former client and that the contractor should not expect partiality, considering the state's questionable judges


Big Picture:

There are states that do not honor non-competes or do not allow them to be enforced on residents of their state for an out of state plaintiff. Now with the Pandemic there will be more remote software engineers learning software stacks then using them at other jobs, possibly in the same industry. I am finding that certain companies are trying the "trade secret" angle to make it more impossible for people to switch to a competing company when their non-compete cannot prevent it.

  • A scan of job adverts should be able to show that (a) Such combinations are not generally treated as proprietary, and (b) someone else is publicly using this particular combination (with a bit of luck). – Paul Johnson Jul 26 at 11:09
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It is not substantive enough to be a valid lawsuit. There is no precedent because these cases are dismissed.

You are better off marketing the product yourself and if it has any value there will be customers.

A trade secret needs to be worth something so you need to market it anyway.

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  • The former client already has subscribers on their version of the software stack. I think would count for showing value? The contractor thinks he can do a much better job with the same stack for a different employer. – StartupGuy Jun 26 at 4:39
  • Then it's a trade secret – Dan Jun 26 at 18:42
  • Even though that same stack is commonly used in similar industries? In fact one of their contractors suggested one of the elements of the stack because the contractor is already using it successfully in that combination elsewhere. Just not for the same type of product. – StartupGuy Jun 26 at 18:52

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