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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. 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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  1. WIPO-UKRAINE SUMMER SCHOOL ON INTELLECTUAL PROPERTY – JULY 2011 Protection of Trade Secrets; current issues

  2. Outline • What are trade secrets? • Trade secret protection • Benefits • Risks • Some issues

  3. 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

  4. 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

  5. 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

  6. 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

  7. Benefits of trade secrets • No registration procedure • No disclosure • Immediate effect • Wider scope • No time limits

  8. 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

  9. 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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