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Thursday, 24 September 2009

Trade secrecy: two books reviewed

Here are a couple of books that each have confidentiality as their theme -- but they are very different. The first, which deals with confidentiality in the world's most populous jurisdiction, is The Protection of Trade Secrets in China by Shan Hailing, who holds a chair in law at Shanghai's East China University of Political Science and Law. This volume is part of the Max Planck Series on Asian Intellectual Property series, published by Kluwer (details here). Having discovered lots about Chinese Whispers and Chinese Walls in earlier parts of his life, the IPKat was curious to see what Chinese trade secrets were like. He was not disappointed.

According to the publisher's web-blurb:

"For many business investors in China, the legal handling of trade secrets is crucial. However, initiatives are often complicated by a patchwork trade secrets protection system, developed rapidly over less than twenty years, that diverges in significant ways from global standards and corresponding regimes in other countries, and that incorporates elements of competition law, contract law, employment law, and criminal law. ...

The author pays close attention to judicial practice and precedent in the areas of civil remedies, criminal punishment, and administrative penalties. She also offers insightful proposals formulated to align China’s trade secrets law more efficiently with prevailing global standards and generally improve the mechanisms for its implementation.

Corporate counsel and international lawyers concerned with intellectual property rights or labour law in China will greatly appreciate the knowledgeable guidance this book affords. They will gain a deeply informed perspective that allows them to avoid infringement, to battle it effectively if occasion arises, and to plan dispute resolution strategies for contingencies involving trade secrets protection in China".
This is a surprisingly wide-ranging work, not only explaining the current provisions in China and the steps taken to evolve them but also examining the theoretical bases of trade secrecy and unfair competition provisions in the United States, Germany and elsewhere. Despite its obviously academic flavour it is a book which which practitioners will be at home -- insofar as any Westerner who may have the misfortune to participate in IP litigation in China will feel "at home" -- and handles real-world issues such as proof and evidence in a thoroughly practical manner. It also reads well, which cannot be said of too many of the books published on Chinese law.

Bibliographic details. Published 2008, hardback. xxiv + 323 pages. ISBNs 9041127585 and 13 9789041127587. Rupture factor: low. Web page here.
Hardcover , 352 pp. Price $231.


Also reviewed here is Trade Secrets: Law and Practice, by the IPKat's old friend David Quinto and his co-author Stuart Singer. David is a founding partner and head of internet litigation at Quinn Emanuel Urquhart Oliver & Hedges, Los Angeles, while Stuart is a partner at Boies, Schiller & Flexner, LLP. According to Oxford University Press:
"As the value of a business has increasingly become a reflection of the value of the company's ideas, trade secret law has become more important, but the field of trade secrets is less well-covered by a substantial margin than patent, copyright or trademark. While several existing treatises discuss U.S. trade secret law, Trade Secret Litigation: Practice and Strategy [Whoops, that's not the name of the book. Some other publication perhaps, or an earlier name that was rejected for this book as being too long/formal?] is perhaps the first to do so from a trial-lawyer's perspective. In addition to case-law analysis, it contains strategic advice on prosecuting and defending trade secret misappropriation actions, maintaining legally sufficient trade secret protection measures, and supervising outside attorneys in a trade-secret litigation".
The book looks a little formidable at first, but there's no need to panic. If you don't read, or need to make reference to, the copious footnotes, it's already a lot shorter. Also, there's around 90 pages of description, explanation and analysis of the law of 22 selected States which the practitioner and the PhD student will probably find extremely handy but which the casual reader may well choose to skim. There's a fair bit of comment about the position taken by the courts in various States in the main body of text too, indicating for example whether the courts in particular locations are more (or less) hostile to certain elements of doctrine than are others.

On the production side, the book -- like the rest of this little series of IP works emanating from Oxford University Press's New York desk -- has a very pleasant look and feel to it. The clarity of the print and the utility of the fold-over cover flaps are both appreciated by this reviewer.

Bibliographic detail: published 2008. Soft cover, xv + 470 thinnish pages. ISBNs 10 0195337832 and 13: 9780195337839. Price:$225. Rupture factor: trivial. Web page here.

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