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Located in the heart of Europe, Belgium is a true hub of logistics and innovation. It is for example home to one of Europe’s largest sea ports (with all the warehousing infrastructure that one would expect). Belgium also hosts several, globally leading biotech and life sciences clusters. It is no coincidence for example that pharma giant Pfizer has one of its largest production and packaging sites in Puurs, a small Belgian town, where it produces its Covid-19 vaccine. A few miles north, Jansen Pharmaceuticals has its HQ.

Such hubs are not just rich in talented human resources, but also in cutting edge and highly valuable know-how. A high concentration of know-how, combined with the increased mobility of employees, means a high(er) risk of misappropriation of this valuable information by unauthorized (third) parties. When a (foreign) company suspects its know-how has been misappropriated in Belgium, it will need evidence to substantiate this allegation in court. If the know-how is (also) covered by an intellectual property (IP) right, the holder of the know-how has access to a very efficient means of collecting evidence: the descriptive counterfeit seizure whereby discovery-like evidentiary measures will be granted ex parte. When the misappropriated know-how is only protected as a trade secret, no similar measures are provided for under EU law. The Belgian judges have therefore in the past not been very eager to grant trade secret holders access to ex parte evidence-gathering. With a recent judgment, however, the Brussels Court of Appeal has left the door behind which discovery-like measures are stored for holders of trade secrets open.

Continue Reading Gathering evidence of trade secret infringement in Belgium: towards discovery-like measures?

The reverse engineering of the mRNA sequence for the Moderna COVID-19 vaccine … a good example  

Recently, the reverse engineering of trade secrets made headline news when it became known that Stanford scientists had published a previously unknown mRNA sequence for the Moderna COVID-19 vaccine, reverse engineered from droplets left in used vials.

Continue Reading Reverse Engineering of Trade Secrets: An important issue you should consider when setting up your innovation protection strategy

We are looking back on our series where we spotlight international issues in trade secret law under the Belgian Trade Secrets Act.

To claim that major conclusions can be drawn from the dozen decisions handed down since the Trade Secrets Act came into force would not be serious. Nevertheless, listing and comparing these rulings has led to some striking observations.

The number of judgments that we found is limited. There are a number of possible explanations for this. A first explanation could be that some parties whose information has been misappropriated since the Trade Secrets Act have not (yet) determined this. This explanation seems to be confirmed by the fact that in several of the cases we have discussed, a period of three to four years elapsed between the facts giving rise to the claim and the first step taken by the claimant against the alleged infringer.[vii] The limited number of judgments may also be partially explained by the fact that even parties who have established infringement may have subsequently realized how many hurdles there are to bringing a successful claim under the Trade Secrets Act. Finally, it seems that there may well be a significant number of potential claimants who, though being aware of infringement and willing to overcome the hurdles, possess insufficient evidence to demonstrate that the infringer misappropriated their secret information. Although the possibility of a unilateral application through summary proceedings was discussed, a statutory scheme like that for intellectual property rights (the counterfeit search and seizure procedure) would probably allow for smoother gathering of evidence.

Continue Reading International Issues in Trade Secret Law Series: A Look Back at Issues Under the Belgian Trade Secrets Act

In our prior post, we discussed what constitutes unlawful use of trade secrets, who bears the burden of proof, and how evidence can be collected to prove trade secret misappropriation under Belgian law.

Today’s post, which is the fifth and last in our series where we spotlight international issues in trade secret law, looks at two final questions:

1) Protection of trade secrets during court proceedings: who is allowed inside the “confidentiality club”?

A “confidentiality club” may sound rather like a speakeasy, but it is not. For those readers who are not particularly familiar with this area, we will first explain the problem for which the “confidentiality club” attempts to provide a solution. A thorny issue during court proceedings to enforce trade secrets is that the holder of the trade secret sometimes has to reveal more than they would like in order to increase the chances of success. This is often the reason why claimants are deliberately vague about the exact contents of a trade secret, or about where exactly the trade secret value resides. This comes usually with the risk that the claim will be dismissed for failure to meet the burden of proof. It is, understandably, not an attractive option to draw up briefs providing detailed information about the trade secret when it is not clear how much secret information has actually been stolen or is in the possession of the defendant. This would simply provide the contested information on a silver platter to the defendant. A similar problem arises with the pleadings and decisions of the court. Because, as a general rule, court hearings are public in Belgium, interested competitors could be in the audience to listen to everything that is being disclosed about the litigated trade secrets. However, for judgments and decisions to be based on correct reasoning and, above all, for them to be intelligible to parties not involved in the proceedings, judgments will have to include minimum information about the trade secrets. When transposing the Trade Secrets Directive, the Belgian legislator tried to meet this sensible concern by setting out a general protection scheme in Article 871bis of the Belgian Judicial Code. Article 871bis of the Belgian Judicial Code can be applied not only in proceedings about trade secrets, but also in other proceedings where a trade secret is used as evidence and must be submitted for the assessment of the court. Among the measures listed in Article 871bis of the Belgian Judicial Code are the possibility to issue redacted versions of court decisions and, of course, to set up so-called “confidentiality clubs.” These refer to the limited groups of persons who are, in certain cases, given access to certain documents shared in the proceedings and/or at certain hearings (and the relevant reports) during which trade secrets will be discussed.

Continue Reading International Issues in Trade Secret Law Series: “Confidentiality Clubs” and Remedies for Trade Secret Misappropriation under the Belgian Trade Secrets Act

In our prior post, we discussed under what conditions business information could qualify as a trade secret under Belgian law (it must be secret, have commercial value, and be subject to reasonable protection measures).

Today’s post, which is the fourth in our series where we spotlight international issues in trade secret law, looks at two other critical questions:

1) Is the use of a trade secret per se unlawful?

Even if it can be successfully demonstrated that the information at issue meets the cumulative conditions of Article I.17/1 Belgian Economic Code and is thus protected as a trade secret, this does not necessarily mean that it has been used unlawfully. The owner of the trade secret must hence demonstrate that their trade secret has been unlawfully used by a third party. The discussion will often revolve around the unauthorized access to the trade secret, as provided for in Article XI.332/4 Belgian Economic Code. This is certainly the case when the party accused of misappropriation is an ex-employee or an independent service provider of the trade secret holder, who gained access to the information in question during their employment or assignment.

Continue Reading International Issues in Trade Secret Law Series: Unlawful Use and Burden of Proof for Trade Secret Misappropriation under the Belgian Trade Secrets Act

Today’s blog is the third in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act. (See our first post here and our second here.)

Today’s post addresses two questions:

1) When does information have trade value?

Continue Reading International Issues in Trade Secret Law Series: Valuing and Taking Reasonable Measures to Protect Trade Secrets under the Belgian Trade Secrets Act

Today’s blog post is the second in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act.

Today’s post addresses two questions:

Continue Reading International Issues in Trade Secret Law Series: Substantive Jurisdiction and Trade Secret Status under the Belgian Trade Secrets Act

Today’s blog post is the first in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act.

On August 24, 2020, a dedicated few celebrated the second anniversary of the entry into force of the 2018 Belgian Trade Secrets Act.[i] With this new law, the Belgian legislator transposed the 2016 EU Trade Secrets Directive[ii] into national law. The Trade Secrets Directive is the result of a European Commission regulatory initiative, taken after a number of issues were revealed by studies conducted at its request.[iii] In particular, it was found that EU Member States lacked a uniform approach to trade secrets and that some of them had very limited trade secrets protection, which in turn hindered innovative cooperation between companies across the EU. In addition, trade secrets were perceived as important assets for companies in terms of innovation and competitiveness. This was particularly true for SMEs which, given their more limited resources, attach greater importance to trade secrets than to other, generally more expensive, forms of protection (such as patents). The need for effective and coherent protection had thus increased significantly in recent years, partly because of an increased risk of misappropriation and abuse of confidential business information. The Trade Secrets Directive aimed to harmonize the rules across the EU and to ensure that companies could rely on both substantive and enforcement provisions, with the ultimate goal of achieving an adequate and consistent level of civil measures to protect trade secrets throughout the internal market.[iv]  The Belgian Trade Secrets Act and its application in case law should be seen in this specific context.

Continue Reading International Issues in Trade Secret Law Series: Parties and Procedural Options under the Belgian Trade Secrets Act

Fig cookiesThe Criminal Court of Mechelen (Belgium) ruled in favor of Bofin Biscuits against a former production assistant accused of having stolen the assistant director of the cookie baker’s laptop. The laptop allegedly contained the secret recipes of all the cookies produced by Bofin Biscuits. This case is interesting because of the nature of the secrets and also when compared to that of the “fig spread”-case discussed here two weeks ago. It also confirms that trade secret misappropriation cases do not necessary only involve complex matters on state of the art technology owned by large multinationals.

The facts of the case are rather straight-forward. On November 12, 2013 the assistant-director of Bofin Biscuits noticed that his laptop had gone missing during his absence from November 6 to November 11. Images from the surveillance video system of Bofin Biscuits showed that the actual taking of the laptop had not been filmed. The camera hanging outside the assistant-director’s office did show a production assistant walking down the hallway where the office was located, entering it and leaving with something clearly hidden under his coat. During the trial the production-assistant did not contradict that he was the person that had been filmed, but he denied that he had taken the laptop. When asked what he then was hiding under his coat, he claimed not to recall anything.

For the public prosecutor this was a clear cut case and he requested the court to sentence the former production assistant to a six month effective prison sentence and a 4.800 EUR fine. Bofin Biscuits, who had joined the proceedings by suing its now ex-employee for civil injury, requested 1.500 EUR for the still missing laptop, 2.500 EUR for the time spent on recovering the information stored on the laptop, 500 EUR moral damages and a provisional damages amount of 25.000 EUR for having stolen the secret cookie recipes.

Continue Reading Employee Who Stole the Cookie Recipe From the Cookie Jar Fined €1 (Yes, that’s one single Euro)

1.  Clearly label Christmas cards as “Confidential” if these contain secret wishes.

2.  Amend Confidentiality Agreements and Employee Manual to include the required Whistleblower language – those elves have rights.

3.  Have robust exit interviews with all departing elves, reminding them of their obligations to keep “reindeer games” secret.

4.  Insist that expert toy makers are warned not to reveal secret information while enjoying (too much) mulled wine with ‘Happy Holidays’-industry peers.

5.  Further restrict access to the Sleigh Packing Room with candy cane key fobs.

Continue Reading DTSA UPDATE: Tips for Santa to Maintain Trade Secrets at the North Pole