Wipo ukraine summer school on intellectual property july 2011
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WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011. Protection of Trade Secrets; current issues. Outline. What are trade secrets? Trade secret protection Benefits Risks Some issues. What are trade secrets?. Confidential business information giving a competitive edge

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WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011

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Wipo ukraine summer school on intellectual property july 2011

WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011

Protection of Trade Secrets; current issues


Outline

Outline

  • What are trade secrets?

  • Trade secret protection

  • Benefits

  • Risks

  • Some issues


What are trade secrets

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

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

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

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

Benefits of trade secrets

  • No registration procedure

  • No disclosure

  • Immediate effect

  • Wider scope

  • No time limits


Risks of trade secrets

Risks of trade secrets

  • Enforcement my be difficult and costly

  • No protection against independent discovery or reverse engineering

    • Including 3rd party patent protection

  • No exclusivity once made public


Some issues

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


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