Nuno Sousa e Silva, ‘What exactly is a trade secret under the proposed directive?’

Trade secrets have always been involved in commerce (the Silk Route being a prime example) but have only recently been directly regulated at an international law level (Section 7 of Part II of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS)). The national laws addressing them are often scattered and variegated.

Believing this to create hurdles in the internal market, on 28 November 2013 the European Commission presented a proposal for a directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The notion of trade secrets contained in it is a carbon copy of Article 39 TRIPS, itself based on the US Uniform Trade Secret Act. This article exploits that definition and the questions left unanswered. After providing a background to the current directive and analysing some national definitions and related terminology, the article focuses on four requirements: (1) information, (2) that is secret, (3) valuable due to its secrecy and (4) subject to reasonable steps to keep its secrecy. The possibility of additional requirements is scrutinized and rejected.

Nuno Sousa e Silva, What exactly is a trade secret under the proposed directive? Journal of Intellectual Property Law and Practice (2014), doi: 10.1093/jiplp/jpu179, first published online: October 4, 2014.

First posted 2014-10-16 06:21:25

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