Ending confidentiality obligations upon information becoming publicly available
Where confidential information is disclosed under a oneNDA, there is no end to the confidentiality obligations where that information is later made publicly available; it is only excluded from the definition of Confidential Information where it was in the "public domain" (which should more correctly be "publicly available") at the time of disclosure.
In the 2002 Australian case of Maggbury v Hafele Australia Pty Ltd, it was essentially held that a perpetual restriction on the use of confidential information that had become public was unenforceable. In that case, the information was about a pending patent application that was ultimately not issued - and as such the information became in the public domain (through the publication of the patent application), but the discoser still sought to prevent the recipient from using that information by virtue of the confidentiality agreement.
This case highlights the need for the confidentiality obligation to end in the event that the information that was disclosed becomes public - not just through an exclusion at the time the information was disclosed.
This could be done through a qualification to 4(a) in oneNDA.
Hi Denis , thanks very much for your suggestion!
We intended to cover this scenario through clause 4(a) which states that confidentiality obligations will last until the end of the confidentiality period. Since it isn’t market standard for a confidentiality period to be never-ending, this clause should hopefully be sufficient in ensuring that the confidentiality obligation for any information that is later made publicly available will end.
We'll still note this down as feedback for the next version of oneNDA and members can upvote on whether they'd like to include this in the next version :)