Protection of Trade Secrets; current issues WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011.

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Presentation transcript:

Protection of Trade Secrets; current issues WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011

Outline What are trade secrets? Trade secret protection Benefits Risks Some issues

What are trade secrets? Confidential business information giving a competitive edge Manufacturing Commercial Sales methods Distribution methods Consumer profiles Advertising strategies Supplier and customer information Manufacturing processes

Trade secret protection - 1 Not a registered protection Article 39 of TRIPS - natural and legal persons shall have possibility of preventing information being disclosed to others without their consent in a manner contrary to honest commercial practice Has to be secret – not generally known in circles which normally deal with such information Has commercial value because it is secret Reasonable steps have been taken to keep it secret Governments have obligation to treat data submitted to them as confidential

Trade secret protection – 2 Confidentiality agreements Part of employment contract Part of franchise agreement Part of B2B contract Informal confidentiality Other laws relating to theft, bribery, industrial espionage Remedies Civil for breach of contract Criminal for theft, trespass etc

Trade secret protection – 3 United States Economic Espionage Act of 1996 Coverage All forms of scientific, technical, economic, engineering E.g. Patterns, plans, compilations, programmed devices, formulas, designs, prototypes, methods or techniques, processes, procedures, programs or codes Tangible or intangible Stored in any fashion such as physically, electronically, graphically, photographically, writing

Benefits of trade secrets No registration procedure No disclosure Immediate effect Wider scope No time limits

Risks of trade secrets Enforcement my be difficult and costly No protection against independent discovery or reverse engineering Including 3 rd party patent protection No exclusivity once made public

Some issues How effective in global economy Contractors, consultants, outsourcing Different countries have different laws Is harmonisation possible? Capacity of SMEs to build secrecy regimes Post-employment situation