A non-disclosure agreement (NDA) preserves the confidentiality of information to maintain its value (Raess & Morton, 2018). Many NDAs are between an employer and an employee, but they may also be used for communications with suppliers, potential customers, consultants, etc. NDAs need to be tailored to each biotechnology, including terms such as the “purpose” of the technology and the “confidential information” being protected. If too broad or ambiguous, an NDA may unnecessarily over-limit what you can talk about. Confidentiality may be one-way or two-way depending on whether both parties agree to keep confidentiality. For example, a one-way agreement may be most appropriate for communicating with a biotechnology supplier.
NDAs are often in effect for around five years in the life sciences. If you need confidentiality to extend longer than anticipated, you should negotiate an extension with the other party before the NDA expires. You cannot extend an expired NDA and would have to negotiate a new one.
NDAs are enforceable if they are contracts. Because they are civil contracts, breaking them is generally not a crime, but someone who breaks an NDA can be sued and required to pay financial damages and costs (Johnson, 2020). Continued use of NDAs is recommended even after obtaining a patent. If the other party uses a trade secret despite an NDA, you can take them to court to get an injunction saying they have to stop using it, especially if you warned them about this in the original NDA and they agreed to it.
Sources
Johnson J. What Happens if You Break an NDA? Free Advice. December 27, 2020.
Raess S, Morton J. What To Consider When Crafting Biotech NDAs. Life Science Leader. October 23, 2018.
Resource
Patent/Invention NDA Template – A template for writing a non-disclosure agreement by Eforms; however, consider having a lawyer draft the NDA or at least review it to be sure it fits your situation.
