EUROPE: The different nations
of Western Europe also had a hodge-
podge of contract, confidence and
unfair completion national laws pro-
tecting trade secrets. This makes pro-
tecting trade secrets systemically across
this region a difficult task (i.e., paying
local council for each country adds up
fast). But to the potential detriment
of all those lawyers collecting fees,
in 2013 the European Commission
proposed creating a standardized set
of trade secret laws for enforcement
throughout the European Union. A
draft directive to have a minimum le-
gal standard across EU states has been
created in recent months. Notably,
member states agreed that individual
national law may enhance trade se-
cret protection beyond this standard,
that the trade secret definition used
by this standard would be consistent
with the World Trade Organization’s
Agreement on Trade-related Aspects
of Intellectual Property Rights (the
TRIPs Agreement), and that the time
to pursue action for misappropria-
tion would be six rather than two
years. Overall, this is a
mixed bag – with some
acceptance of standard-
ization while retaining the
legal flavor of individual
states. Finalization and
adoption by the European
Parliament still needs
to occur.
CHINA: Though the
world is a big place,
the up-coming giant for
trade and manufacture
is China. They are fully
aware of the concepts
and value of trade secrets,
ever since the days when
they kept the methods
of producing silk secret
for over two thousand
years by beheading. But,
no offense meant to our
friends on the mainland,
China has a less than
stellar reputation for
protecting other’s intellectual property. Phrases
such as “possible systemic stealing of intellectual property of American
companies” have been
used by the Treasury
Secretary Geithner in
2011. And those words
were backed by the steely
power a Federal Circuit’s
decision supporting the
United States International Trade
Commission’s ability to block import
of items manufactured in China using
misappropriated trade secrets.
Taking the hint, in 2012 China’s Civil
Procedure Law was amended so you
could obtain preliminary injunctive re-
lief which has been used at least once to
protect a western corporation, Eli Lilly,
from trade secret misappropriation. So
hope is in the air.
GLOBAL: The Golden Land of
Global Standardization. After thousands of years of international commerce, the World Trade Organization
(“WTO”) adopted TRIPS agreement in
1995. Information that we would understand as a trade secret is defined in
the TRIPs agreement Article 39(2) as:
“(a) is secret in the sense that it is not,
as a body or in the precise configuration
and assembly of its components, generally known among or readily accessible
to persons within the circles that normally deal with the kind of information
in question; (b) has commercial value
because it is secret; and (c) has been
subject to reasonable steps under the
circumstances, by the person lawfully
in control of the information, to keep
it secret.” To protect your trade secrets
under Article 39(2) “natural and legal
persons shall have the possibility of
preventing information lawfully within
their control from being disclosed to,
acquired by, or used by others without
their consent.” Over 100+ member nations of the WTO that have adopted the
TRIPS agreement.
So your problem with international
trade secret misappropriation is solved
for all time? Nah, don’t be silly! To
enforce your rights, Article 42 state
“Members shall make available to right
holders civil judicial procedures.” And
the agreement goes on with generic
minimal requirements for civil procedures such as written notice of basis of
claims provided to defendants, the right
for both parties to legal counsel and to
present evidence, etc. that are not exactly
a detailed standardization of rights and
procedures, but more of an agreement to
have rights and procedures.
And as we have seen from the US, the
European Union and China which have
adopted this agreement, the laws and
penalties for each nation / region still remain far from consistent. But it is a step
forward. And, it probably beats beheading. Stick around for another thousand
years, and everyone will probably operate
using the same rulebook.CW
