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

On October 4, 2015 the trade ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam announced that they concluded the Trans-Pacific Partnership (TPP). After more than five years of intensive negotiations, these countries representing a combined market of nearly 800 million people agreed to provide, among other things, enhanced protection for trade secrets, as well as efficient enforcement systems for commercial-scale trademark counterfeiting, copyright infringement, or related piracy.
Continue Reading Reports on the TPP Agreement Suggest Focus on Criminal Law to Strengthen Trade Secret Protection

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.

EU
[via Flickr user Thijs ter Haar]

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?


Continue Reading The Future of Trade Secret Protection in the EU: A Bird in The Hand is Still Worth Two in The Bush