How far away is global trade secrets protection? US industry's call to action as EUIPO analyzes baseline data

The AmeriKat falls into a trance when
she starts to consider all the issues
that would need to be weaved into
a global trade secrets regime

The trade secrets field is becoming increasingly active, with numerous industry bodies and governmental organizations ramping up efforts to ensure that trade secrets can be protected efficiently, cross border.  The global trade secrets guru, Jim Pooley, has news of these efforts for IPKat readers.  Jim reports from Silicon Valley as follows:

"Last year when the U.S. enacted the Defend Trade Secrets Act just weeks before the EU Trade Secrets Directive came into force, one could be excused for seeing it as mere coincidence. In fact, these legislative events – in the U.S. to federalize trade secret law and in the E.U. to harmonize it – were interim outcomes of a sustained campaign by industry to focus attention on this long-neglected area of IP.

The most recent manifestation of this effort is a letter sent this month to the U.S. Trade Representative by a consortium of U.S.-based business associations, asking that “global trade secrets protection” come to the top of the agenda in trade negotiations. Pointing out that “cross-border misappropriation” is an increasing threat to the domestic economy, the letter asks that America join in a “Friends of Trade Secrets” group currently in formation at the World Trade Organization. 

Other parallel initiatives are underway. APEC last year issued its “Best Practices in Trade Secret Enforcement and Protection Against Misappropriation.” The ICC has assembled a Trade Secrets Task Force of lawyers to help advise business and government. And the National Bureau of Research in Washington recently sponsored the formation of the Standing Dialogue on Trade Secrets, bringing together private sector and government representatives to study the problem.

Just what is that problem? Trade secrets, we need to remember, represent the oldest form of intellectual property. Traditionally they have been easy to protect with locks and local laws. But with increasingly valuable data assets now stored and transmitted digitally, accessible from anywhere in the world, national legal systems seem inadequate. Just as innovation now happens mainly through collaborations directed at global issues, the search is on for ways to adapt and coordinate national structures to protect modern industry’s key asset: data."

Global trade secrets protection was the topic of a 3 hour interactive panel session at the recent AIPPI Congress in Sydney.  With a scenario which saw a "rogue" employee flee across the globe with trade secrets in tow, the audience acting as external counsel for the fictional trade secrets owner, had to battle cross-border misappropriation against a diverse patchwork of legislative and procedural requirements.  Without any international harmonization (substantive or procedural) or streamlined channels of communication between authorities, the audience discovered that it wasn't always particularly easy or straightforward when you are racing against the clock (more on this later).  It is therefore a welcome step to see more activity in the cross-border trade secrets context, although most of the activity is coming from the US (for now). 

Readers in Europe will be aware that the EUIPO, in conjunction with KPMG, has been busy collecting data from EU Member States on the national treatment of trade secrets/confidential information in order to establish a baseline prior to the implementation deadline for the EU Trade Secrets Directive.  Several organizations have provided submissions, including the UK Group of AIPPI found here.  A rough review of the past 5 years of published decisions in the UK dealing with trade secrets/breach of confidence (either as a cause of action itself or introduced as part of related proceedings), showed there were more cases where the Courts were wrangling with these issues than one might have assumed.  More analysis needs to be done, but it seems those Queen's Bench Division lawyers have been having all the fun.

The AmeriKat is looking forward to the outcome of the EUIPO's analysis, which she hopes will facilitate increased understanding between Member States as we look towards possible future harmonization in Europe and beyond.  If any readers have any updates on other national legislative efforts in advance of the EUTSD or otherwise, let the IPKat know!