1. I typically use disclosure period to specify just what confidential information is protected under the Agreement.

2. Agreed – most nondisclosure agreements expressly put the burden of showing an exclusion on the receiving party. (My usual language says, (ii) is not shown to be within an exclusion stated in this Agreement; I typed it from memory and evidently left that part out.) This makes sense – the disclosing party is in the best position to show that it made reasonable efforts to protect confidentiality, but it will have a hard time proving the absence of public disclosures, etc. So the agreement will usually require the receiving party to show that a public disclosure, etc., has happened. (What the receiving party might not want to agree to is a requirement that such a showing be made by documentary evidence.)

Not bad. Two points (of which you are probably aware):

First, I like to nail down the part of the disclosure where the other side hands me information. I like to limit who it comes from—someone acting for the other party, so as to exclude situations where we are the one who obtains it on the other party’s behalf.

Second, putting the requirement that the information not be subject to one of the exception into the definition of confidential information probably reverses the burden of proof. Most courts that I’ve heard about say that the plaintiff fulfills the prima facie case by showing that the information is within the original definition and that the defendant has to plead and maybe prove the exception. Since the exceptions tend to be things that the defendant knows (from whom they got the information) or something where the plaintiff would have to prove a negative (this is not public information), that makes some sense (at least as a matter of pleading and coming forward with at least some evidence). I don’t know what your construction would do to that.

Mike:

As an example: A published patent application is public. Sure, you gave it to them for convenience, but they can go get it themselves. Why would you care if they kept the copy you gave them?

Gene:

You might try nonpublic. (Yeah, it ought ot have a hyphen, but that’s a pain to type every time and you’re creating a defined term.)

Chris

Gene: You can use whatever word you want as long as you make it clear in the contract what that word means.

Ken

In those cases, the information may not be “confidential” or “trade secret” but that doesn’t mean that the receiving party should be able to use the information for their own purpose, for the detriment of the other party, or for someone else.

The plain English justification might look like this: I’m giving this information (or access) to you for my benefit, not yours, and I don’t care if it doesn’t meet someone’s definition of confidential or trade secret because you wouldn’t have it.

The important aspect of confidential information is that it is confidential and disclosed in such a way that the other party can readily identify it as confidential. The marking requirement may not appear to be a problem for short term contracts where the NDA has a very short term (say <1year) and survival is also very short. But when CI obligations survive for a long period of time, the disclosure requirement becomes paramount to identifying information that needs to be protected as CI.

The “proprietary” wording in some US CDAs has always puzzled me.