What to Do When Someone Breaches Your NDA

An NDA breach — when a party discloses your confidential information in violation of their contractual obligation — can range from careless oversharing to deliberate theft of trade secrets. Your response depends on the severity, the governing law of the NDA, and the commercial consequences.

Step 1: Document the Breach

Before contacting anyone, gather evidence. Screenshots, emails, product listings, social media posts, publications, or any other evidence showing that confidential information was disclosed. Preserve originals — do not rely on memory. Note dates, sources, and the specific confidential information disclosed.

Step 2: Assess the Damage

What was disclosed? To whom? Is the information now publicly available (destroying trade secret status) or was it disclosed to a limited audience? Has the disclosure affected your patent position (e.g., constituting a public disclosure that destroys novelty in no-grace-period jurisdictions)? Has a competitor gained a commercial advantage?

Step 3: Send a Formal Notice

Through your attorney, send a written notice to the breaching party identifying the specific NDA provisions violated, the specific confidential information disclosed, and demanding immediate cessation of further disclosure, return or destruction of all confidential materials, and confirmation of compliance.

Step 4: Assess Legal Options

Injunction: A court order requiring the breaching party to stop disclosing and to take steps to contain the damage. Available in most jurisdictions for urgent IP matters.

Damages: Monetary compensation for losses caused by the breach — lost commercial opportunities, increased competition, reduced patent value.

Arbitration: If the NDA specifies arbitration (recommended for international NDAs), initiate arbitration proceedings rather than court litigation.

Step 5: Protect What You Can

If the disclosure has not yet become widely public, act fast to contain it. If it has become public, assess whether your patent position is affected and whether any emergency filings are needed.

Sources

1. WIPO — Confidentiality and Trade Secrets — Global overview of trade secret protection and confidentiality frameworks
2. USPTO — Trade Secret Policy — US trade secret and confidentiality considerations in the patent context
3. EPO — Patent Resources — European guidance on disclosure and confidentiality in patent proceedings