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

Simple facts…

In 2018, an employee requested access to and a copy of all their personal data processed by the employer during the past decade (this is pursuant to the data subject’s right of access enshrined in art. 15 (1) and (3) of the European General Data Protection Regulation (“GDPR”)). The employee considered the response unsatisfying and filed a complaint with the Belgian Data Protection Authority (“DPA”). The DPA issued a decision on February 9, 2021 (the “Decision”).


Continue Reading Invoking Trade Secrets to Block a Request to Access Personal Data under the GDPR: A “Threat” Has to Be Clearly Demonstrated

Tips for European employers on how to protect company trade secrets.

7 to 12 years. According to an Organisation for Economic Co-operation and Development study, this is the average amount of time spent by an employee with any one European Union employer. However, in some countries, regions and sectors, employees move around more frequently than this, and the current COVID-19 pandemic will also have had an impact on these numbers.

In any event, if one of your employees leaves, you do not want your company’s trade secrets and other confidential information to leave with them.


Continue Reading Employees may come and go. But will your trade secrets follow them?

Since its passage in 2016, the Defend Trade Secrets Act (“DTSA”) has become a powerful tool for litigants seeking civil redress for the misappropriation of trade secrets to get into federal court.  The DTSA is particularly important because it allows litigants to seek redress for misappropriation that happens outside of the United States – overcoming the general presumption that federal law does not have an extraterritorial reach.  We recently discussed the significance of the DTSA’s application across the globe and how to effectively achieve quick recourse.

Continue Reading The Sedona Conference Publishes An Analysis of How to Seek Global Redress of Trade Secret Misappropriation

We have reported on various aspects of the EU Trade Secrets Directive on this blog. The legal requirements for something to qualify as a trade secret, the misappropriation of trade secrets and the remedies that exist to rectify such misappropriation, as well as the protection of trade secrets during court proceedings have all been discussed. However, in order to be properly prepared for trade secrets litigation and enforcement – both in Belgium and across the EU – you also need to know what damages are potentially available for trade secrets misappropriation and more importantly what evidence will have to be shown to the court.

Continue Reading Enforcement of trade secrets in the EU: compensation and damages for trade secret misappropriation

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