Germany recently adopted new legislation governing trade secret protection. The “Gesetz zum Schutz von Geschäftsgeheimnissen” (or Trade Secrets Act) implements European Union Directive 2016/943, which is intended to harmonize trade secrets law across the European Union. While many of the core provisions of the Trade Secrets Act will be familiar to practitioners of U.S. trade
The 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.
Today, the European Parliament approved a Directive that seeks to simplify and harmonize the law on trade secrets throughout the European Union with a vast majority (503 in favor, 131 against and 18 abstentions). The Directive was first proposed in 2013. Although the initial proposal was deliberately kept ‘low profile,’ it was the subject of heated debates up until today’s vote. Certain members of parliament indeed invoked the ‘Panama Papers’ and requested that the vote be suspended until the European Commission would have prepared its proposal specifically dealing with whistleblowers. The vote now goes to the EU Council. As this typically is but a formality, it is likely that the Council will approve the Directive as it reads today. If it does, EU member states will have roughly two years to replace their current patchwork of trade secret law and implement the Directive into national law.
The Directive’s stated intent is to “enhance the competitiveness of European businesses and research bodies” and to “improve the conditions/framework for the development and exploitation of innovation and for knowledge transfer” within the EU. …
On June 16, 2015 the report on the draft Trade Secrets Directive by rapporteur Constance Le Grip, was adopted by the vast majority of the members of the European Parliament’s Legal Affairs Committee (19 in favor, 2 against and 3 abstentions). Informal talks will now start with the European Council in view of reaching a first-reading agreement.
In a previous post we reviewed some of the arguments that have been used by the lobby against the Trade Secrets Directive. One of the more popular arguments, is that these rules would excessively limit the fundamental right of freedom of speech. For instance, opponents argue that the proposed rules would allow owners of trade secrets to prosecute journalists or whistle-blowers if confidential business information became public. Not surprisingly, this concern was raised with the Legal Affairs Committee.
The European lawmaker’s work on the draft Trade Secrets Directive, intended to create a uniform legal basis for the protection of trade secrets in the European Union, has entered the finishing straight. The proposal has been and still is subject to much debate at the highest policy and lawmaking level. There are indeed still quite some obstacles to overcome before the Trade Secrets Directive can become a reality rather than merely a draft. In this contribution I will discuss some of the frequently heard arguments for not going through with this project. In my opinion these arguments do not hold good and should not convince the members of the European Parliament to vote against the draft Trade Secrets Directive.
In the past many authors/speakers, including yours truly, have identified several issues and weaknesses in the initial text proposed by the European Commission and even in the text that was proposed by the European Council (despite significant improvements). My criticism has predominantly focused on the shortcomings of the draft Trade Secrets Directive in relation to enforcing the rights granted by the directive. For example:
- The draft does not contain any provisions with respect to pre-trial discovery or other means of finding and preserving evidence of trade secrets theft/misappropriation.
- Despite the European Commission’s ambition to provide SMEs, often struggling to develop and in particular enforce a patent portfolio, a means to protect themselves, there is no provision dealing with the recovery of legal fees and costs for the party prevailing in trade secrets litigation.
- Recovery of legal fees and costs would also offer protection to any party that is unlawfully subjected to trade secrets proceedings.
- What will be the cross-border effect of a decision finding infringement in one EU member state? Wouldn’t reversing the burden of proof in that event be an efficient way to avoid a multiplication of court proceedings in different EU member states?
On November 28, 2013, the European Commission (EC) proposed a directive “on the protection of undisclosed know-how and confidential business information (trade secrets) against their unlawful acquisition, use and disclosure.” If adopted, the directive will establish a common definition of “trade secrets” and set of remedies in all 28 European Union (EU) Member States. The…
The Federal Circuit has recently confirmed that the International Trade Commission has jurisdiction over trade secret misappropriation, even if the predicate acts of misappropriation occur entirely outside of the United States. The decision, TianRui Group Co. v. International Trade Commission, 661F.3d 1322 (Fed. Cir. 2011), suggests that the ITC can play a very important…