From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 28 November 2013

Secret directive proposal: are Secret Santa's secrets any safer?

Will Secret Santa find pan-European
protection of his identity, gift list and
database of donors and recipients ...?
Today the European Commission announced that it has now adopted a" proposal for a Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure". Unlike some of the Commission's other IP-related proposals, which received more publicity than even important things like the weakness of the Euro-zone and the latest additions [and subtractions, queries Merpel] to Lady Gaga's wardrobe, this proposal has crept up on the IP community almost silently, indeed quite secretly -- even though it wasn't a product of secrecy itself [cf ACTA and the TPP].  There doesn't even seem to be any trace of this proposal from the UK Intellectual Property Office, normally so swiftly off the starting block. Full marks, then, go to the Kat's friends at Hogan Lovells, who have gone so far as to send him the following information:
" ...The Directive will dramatically reform the law of trade secrets across the European Union. It is designed to harmonise the law and how it is enforced across all 28 Member States.
Sarah Turner, partner at Hogan Lovells and co-author of a 2012 study on trade secrets for the Commission ["has this been published?", asks the Kat, who only knows of this 2013 study by Baker & McKenzie], commented:
"Harmonisation of the law on trade secrets has been a long time coming -- the law across Europe as it currently stands is a patchwork and is often inadequate. The proposal is definitely a step in the right direction although there are still some noticeable gaps. For example, trade secret holders often face considerable difficulties in obtaining evidence of misuse and damage [is this the old questiojn of discovery or no discovery, wonders Merpel, or is there more to it than that?]. If the necessary evidence cannot be obtained then legal action may not get off the ground. The current proposal does not introduce procedures to address this issue [In that case it isn't going to change much, is it, Merpel thinkd]. For example, it does not include means to compel defendants to provide information or documents or for a claimant to seek "search and seize" orders without notice to the defendant in order to preserve evidence if there are serious grounds to believe the defendant would otherwise destroy it.

Nonetheless these proposed changes [listed below] are very welcome and appear to support the Commission's general desire to ensure respect for intellectual property and related rights. The differences in trade secrets protection until now have meant that businesses trading in Europe have been in danger of losing significant revenue to their competitors and opportunists. Investors, particularly those interested in innovation and technology, are more willing to invest in countries where they believe that their secrets are adequately protected from misuse [Wait a moment, says Merpel: aren't businesses that don't have trade secrets and who hope to cash in on other people's, more likely to invest in countries where protection of secrets is inadequate?]. Hopefully this attempt to harmonise the law will mean that Europe is in a better place to compete with countries such as the US where trade secrets are recognised as an important business asset and protected by the law accordingly".
[...] The main changes proposed by the draft Directive are:
1. Introduction of a uniform definition of a "trade secret". Currently the term is not defined in most countries' law.

2. A two year limitation period in which to bring claims, running from the date on which the claimant became aware (or should have been aware) of the last fact giving rise to the action. This is a much shorter period than is currently enjoyed in many Member States [is this for the sake of certainty, or to make it more difficult for prospective plaintiffs, or what?].

3. Introduction of a common set of remedies for trade secret misuse including:
• interim and permanent injunctions;

• seizure of suspected infringing goods and their destruction if trade secret misuse is proved; and 
• compensatory (but not punitive) damages which reflect the actual loss suffered [why not simply have the same scheme for damages as exists for other rights under the IP Enforcement Directive 2004/48?].
4. Introduction of procedures to preserve the confidentiality of the secrets in dispute during legal proceedings [This Kat is shocked to think that there are still countries in the EU that don't already do this].
The proposed Directive will now enter the normal legislative process involving the European Parliament and the Council before it is adopted.
The Commission's trade secrets page is here
The full text of the proposal (26 pages) is here
Secret Squirrel here
Secret Santa here

LATE NEWS: Sarah Turner has emailed the IPKat with this link to the 2012 study mentioned above. Thanks, Sarah!

EVEN LATER NEWS: if the link above isn't working, have a go at this one:

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