Non-Disclosure Exceptions: Publicly or Generally Available

Non-Disclosure Exceptions: Publicly or Generally Available

A standard exemption to the application of non-disclosure/non-use restrictions in an NDA applies where and when the information enters the public domain, i.e., becomes publicly or generally available to the public.

However, this exemption should not be applied where the protection was waived through no fault of the information owner:

Exemplar N18C-1

Notwithstanding anything to the contrary, the Receiving Party shall not have any obligation with respect to any Confidential Information of the Disclosing Party or any portion thereof which the Receiving Party can establish is or becomes publicly available through no wrongful or negligent act [or through no act or omission] of the Receiving Party;

Because of the irreparable damage that can occur as a result of unauthorized disclosure of confidential information, a waiver resulting in the loss of confidentiality should be deliberate and clear. The following exemplars are designed to protect against any waiver of confidentiality due to some partial or indirect (or other de minimis) public disclosure thereof:

Exemplar N18C-2

Confidential Information shall not be deemed to be publicly available or generally available to the public merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are now or become known to the public.

Exemplar N18C-3

Confidential Information shall not be deemed to be in the public domain merely because any part of the Confidential Information is included in general disclosures or because individual features or components are publicly known.