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