A chemical company has one operation in a foreign country and an identical operation in the U.S. For one chemical, they wish to file a trade secrecy claim under Sections 311 and 312. With regard to public disclosure, all non-government entities in the foreign country are bound by a confidentiality agreement regarding this chemical's identity and usage. However, there is no confidentiality agreement with the foreign government because the foreign government's laws have a statutory guarantee of confidentially for all foreign business interests. Does this lack of a tangible confidentiality agreement with the foreign government constitute public disclosure? How is this reported on the substantiation form?
The fact that there is no tangible piece of paper stating "confidentiality agreement," is not dispositive. The statutory guarantee of confidentiality serves as an agreement of confidentiality. Therefore, Question 3.2 on the Substantiation Form asking about disclosure may be checked "No."