Cats and Bags? The importance of trade secrets protection -- and a conference

Confidentiality is a bit of a delicate issue for felines, since a metaphor that we consistently encounter when dealing with the protection of trade secrets is that of "not letting the cat out of the bag". The metaphor is an apt one, however. As anyone who has had a cat will know, in the unlikely event that you can get a cat into a bag, if it gets out you will find it almost impossible to get back in again. Much the same is true of confidential information. Once out in the open, it is effectively impossible to reinvest it with the property of confidentiality.

This irreversible quality of information -- the facility with which it exits the private domain and becomes shared or public knowledge -- is a danger to which IP practitioners are ever alert (or should be). Even as late as the mid-1980s it was relatively easy to keep confidential information such as technical know-how, ingredient and product formulations and lists of customers and suppliers more or less under lock and key. Employees who had access to such information were watched after leaving a business, to see whether that information had migrated to a new employer to to the employee's own new business initiative. Explicit contractual restraints on post-employment disclosure or use by former licensees were not so difficult to enforce where there was genuinely confidential property to protect, and technology had relatively crude devices for facilitating industrial espionage.

The world is now a very different place. Information stored in digital formats is so easy to copy and to distribute to remote recipients in quantity and in almost no time. The outsourcing of design, product testing and manufacture necessitates the sharing of information that originally would never have left the immediate control of the business generating it. Technical means of securing unauthorised access to third party information are now available in abundance, and much commercially valuable data is stored in the cloud or is transmitted through electronic highways which are insufficiently secure to resist interception. Secret information is also under regular threat from applications for disclosure in legal proceedings and from gaps in the rules regarding professional privilege.

In this new world, businesses have to work closely with their legal advisers and with technical consultancies if they are to devise a workable, affordable strategy for retaining the confidential nature of information that is unavailable to their competitors. They also need to have a Plan B for when all efforts to preserve that confidentiality have failed -- and it might help to have a Plan B that's a bit more subtle than "let's find someone we can sue ..."

Not everyone appreciates how little law exists on the subject.  The Paris Convention on the Protection of Industrial Property contains neither the word "secret" nor the word "confidential" and TRIPS accords it a mention in just Article 39, a curious provision dealing with various species of "undisclosed information". The European Commission has been promoting a Trade Secrets Directive [you can read all about the current state of the proposal and its background here] and that's all very well, but it takes more than legislation to protect trade secrets -- and the reader might get the feeling that the proposed Directive is more about competition and competitiveness in the Single Market than about protecting owners of trade secrets against their theft and wrongful use.

This Kat can't offer any simple solution to the problems surrounding confidential information, but he hopes that some positive and constructive take-aways can be gleaned by anyone attending "Trade Secrets Protection & Enforcement: powering business growth by protecting your confidential data and know-how and enforcing against its misappropriation", a two-day event spanning Monday 26 and Tuesday 27 January 2015 in the congenial and comfy surroundings of the Pullman Brussels Midi Hotel, Brussels [a city associated with the legendary, if fictional, Hercule Poirot]. There are some goodies on display here in terms of performing Katfriends, including John Hull (Of Counsel, Farrer & Co., and author of the 1997 Sweet & Maxwell classic, Commercial Secrecy). John is not the only distinguished author on parade, though. Co-Chair of this event together with Royal Dutch Shell's David Koris is WIPO Deputy Director General James Pooley, author of Trade Secrets, published by Law Journal Press in the United States).

The IPKat weblog is a media partner of conference organisers C5, who are kindly offering readers of this blog a 10% discount if they remember to quote the IPKat's VIP discount code “IPKATTS10” when they register. You can check out the programme, full details of speakers and ancillary attractions by clicking here.