EU Trade Secrets Directive

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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

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

A recent English court decision for the first time explores the overlap between trade secret claims under the EU Trade Secrets Directive 2016/943 and English equitable and common law claims for breach of confidence.

In Trailfinders Limited v Travel Counsellors Limited & Ors [2020] EWHC 591 (IPEC), travel agency Trailfinders brought a case against competitor TCL and four former employees who allegedly exploited customer lists and accessed Trailfinders’ customer database after joining TCL to exploit confidential information to their and TCL’s benefit.

In analyzing whether information taken by employees rose to the level of trade secrets, the judge turned to “the definition of ‘trade secret’ in art.2(1) of Directive 2016/943 (always bearing in mind the broad interpretation of ‘trade secret’ in the Directive).” Trailfinders Limited v Travel Counsellors Limited & Ors [2020] EWHC 591 (IPEC), [29]. Trade secrets under the EU Trade Secrets Directive, implemented in the United Kingdom by Trade Secrets (Enforcement etc.) Regulation 2018, must meet all of the following requirements: “(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) it has commercial value because it is secret; (c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.” The judge recognized that there were different categories of information that employees could be exposed to during employment which were entitled to varying levels of protections.
Continue Reading English Court Addresses Intersection of Trade Secrets Directive and Common Law Breach of Confidence Claims