Trade secrets

The Global Trade Secrets Protection Index (TSPI)

Mark Schultz and co-author Douglas Lippoldt created the Trade Secret Protection Index (TSPI). The TSPI is a data-driven, objective index that measures the strength of trade secret protection in 39 countries from 1985 to 2010. It was originally created for the Organisation for Economic Cooperation and Development (OECD) in two ground-breaking studies, which IIPR is working to update and expand upon, so more information and analysis will be available shortly about the state of TS protection in different countries.

The first study, Approaches to Protection of Undisclosed Information (Trade Secrets), explains the importance of trade secret law and establishes the TSPI, explaining its methodology and results.

The second study, Uncovering Trade Secrets – An Empirical Assessment of Economic Implications of Protection for Undisclosed Data, uses the TSPI to assess the economic impact of trade secret law. It finds a positive relationship between the strength of trade secret laws and several important economic outcomes related to trade and innovation.

Link to TSPI.

 

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Beyond the Contract: Building a Trade Secret Protection Culture

As Craig Moss, Executive Vice President of Ethisphere, explains in his article, the increasing prevalence of sensitive digital information has led companies to rely more heavily on trade secret protection as an IP strategy.  At the same time, however, the increase in digital activity makes trade secret protection more difficult, as digital assets are easier to copy and move than physical ones.  Furthermore, effective protection can be even more difficult because trade secrets often need to be shared with third parties—such as contract manufacturers, R&D centers, resellers, and joint venture partners—in the normal course of business.

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Covid Vaccines: Intellectual Property and Access, a Melting Pot of Viewpoints

Innovation Council member SARIMA has published an article by Dr Andrew Bailey, in which he explains the various views on the issue of access to IP in light of the COVID-19 pandemic. He sees a need for governments to build capacity in the manufacture of vaccines, in order to both meet local demand and assist with pandemic response. 

During the pandemic, there was incredible collaboration across institutional, corporate, and national boundaries to address the urgent health crisis. Bailey hopes that this experience will shape global thinking about collaboration, and about how to ensure equitable access to healthcare whilst taking care to properly respect the infrastructural investments, trade secrets, and know-how of manufacturers.

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Why the differences in valuing patents and trade secrets matter

It is important, for a startup to understand how patents and trade secrets can be valued as assets, the positive and negative factors that go into valuing both, and how potential investors really view these assets.

Trade secrets may not have the same cache as patents to a startup because they do not come with a ribbon-affixed certificate, are not subjected to any examination process, and are often harder to define. But trade secrets can be just as valuable — and in some instances more valuable — than patents. This article explains the values of both patents and trade secrets to help align the IP strategy with the overall business model.

Read the full story.

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Life Sciences: Trade Secrets and Data

Life science reporter Adam Houldsworth explains in this article that the pandemic has made it more important than ever to prevent the misappropriation of trade secrets. Pharma and biotech scientists have become more mobile and better able to access valuable information remotely and online (which has probably increased significantly this year). Complex patterns of R&D collaboration between companies and licensing also contribute to these risks, as do growing commercial incentives to find better ways to produce biosimilars. In addition, innovators need to have a strategy in place to protect the confidentiality of regulatory data following the ECJ decision and should consider this early in their R&D process. A clear data strategy on how to commercialise this in new ways is increasingly important – licensing data can save companies time and money and bring new therapies to market faster.

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Eight steps to secure trade secrets

Following the whitepaper on “Reasonable steps” to protect trade secrets, (you can find a brief overview and the link to the paper here, CREATe.org published its Eight steps to secure trade secrets.

The purpose of this guide is to help understand the management system component of trade secret protection. It provides you with practical advice and tools so you can more efficiently develop and implement a trade secret protection program that is appropriate for your company and the risks it faces. This guide starts by providing a roadmap for you to use in starting, or enhancing, a trade secret protection program. Next, the Guide looks at each of the eight areas of an effective trade secret protection program in more detail. For each area – called business process categories – there are specific activities that you can use as a checklist against your current program or for improvement project ideas. These check- lists are just a starting point – each activity can be broken down into a greater level of detail or be fine-tuned to your specific priorities.

Read the full story.

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“Reasonable steps” to protect trade secrets: Leading Practices in an Evolving Legal Landscape

Protecting companies’ confidential business and technical information – “trade secrets” – is becoming a major priority of the private sector and governments around the world. Trade secrets and other intellectual property and intangible assets represent the bulk of the overall value of many companies.

The authors of this whitepaper from the Center for Responsible Enterprise And Trade (CREATe.org) review the “reasonable steps” requirement for protecting trade secrets. They look at international, regional and national laws and legislation; consider the types of protections that companies have implemented; and look at court cases that examine “reasonable steps” taken by companies.

National and regional laws – perhaps unsurprisingly in a globally connected economy – continue to converge as to the elements required for proprietary information to qualify for legal protection as trade secrets. It is thus vital for companies to understand what “reasonable steps” need to be implemented to protect trade secrets in accordance with these laws, and to look to leading practices that companies around the world are using to protect such information. The very legal protections that a company hopes to secure for its proprietary information very much depend on taking such “reasonable steps.”

Read the full story.

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Trade Secrets: Tools for innovation and collaboration

This paper by Jennifer Brant and Sebastian Lohse intends to inform policymakers about the contribution of trade secrets to knowledge transfer and collaborative innovation, with emphasis on technological know-how. It also aims to inform policymakers about certain shortcomings in existing frameworks for trade secret protection, which can undermine cross-border collaboration in particular.

The authors of this paper describe the value of trade secrets to innovative firms of all sizes and the role of trade secret protection in facilitating knowledge flows. At the same time, it identifies several factors that complicate the protection and management of trade secrets in today’s business environment. Many of the factors relate to the business environment itself, which is characterized by networked R&D and open innovation, globally dispersed teams of employees, increased employee mobility, digital storage of data, and the growing value of know-how as a source of competitive advantage – and thus a target for corporate theft.

Other risk factors derive from inadequate legal frameworks for trade secret protection, which make it difficult for trade secret owners to recover in the event of misappropriation. Legal fragmentation across countries, and even within countries and economically integrated areas, compounds this difficulty and further compromises collaboration and the sharing of know-how with external partners.

To overcome the challenges described in this paper, policymakers and industry groups may consider providing training for SMEs, to guide them in using trade secrets as part of their intellectual asset management strategies. Compared to larger firms, SMEs have relatively lower levels of experience with and fewer resources to dedicate to IP management. Innovative SMEs are likely to benefit from training on the appropriate actions they must take to protect confidential business information, in order to be able to enforce their rights before the courts in the event of misappropriation. They could also benefit from insights into how to institute effective processes for managing confidential information internally and vis-à-vis partners.

Read the full story.

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Trade Secrets blog by Orrick

Trade Secrets Watch is a blog on all things trade secrets. It’s run by trade secret attorneys at the law firm Orrick, Herrington & Sutcliffe LLP. The blog offers the latest trade secret news and analysis from the United States and across the globe. It covers recent cases and proposed legislation, verdicts and settlements, practice tips, upcoming events, and other interesting trade secret tidbits.

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