Preserve and Protect

International trade secret legislation and best practice

Most businesses have trade secrets they would like to protect, but the process of doing so is notoriously difficult.

Until recently, very few countries had dedicated legislation that could be used by courts to enforce claims of theft or misappropriation of business-critical information. One of the biggest sticking points has always related to the definition of a trade secret, which can vary from jurisdiction to jurisdiction and is usually subject to a set of relatively broad criteria.

Legislation around trade secrets is beginning to catch up with other areas of intellectual property law, as governments recognise the importance of this protection to their businesses and economies. The US recently enacted the Defend Trade Secrets Act (DTSA), designed to give Federal courts the power to rule on trade secret violations. In Europe the EU Trade Secrets Directive will perform a similar function, attempting to clarify for the European courts, how to deal with claims of trade secret misappropriation.

Despite these recent legislative innovations, non-disclosure or confidentiality agreements between businesses and their employees, manufacturers and suppliers still play an important and necessary part in protecting intellectual property that falls under the trade secret umbrella.

With all this in mind, IR Global brought six members of its Intellectual Property Group together to discuss trade secrets. The aim of the feature is to give members and their clients some insight into innovative approaches to trade secret protection across a range of jurisdictions. We also assess the implications of regulations such as DTSA, the EU Trade Secrets Directive and Japan’s Unfair Competition Prevention Act, offering best practice advice on how to avoid accusations of misappropriation.

The following discussion involves IR Global members from the United States – New York and California, France, India, Japan and Germany.