Safeguarding secrets when employees leave

By Bernhard Schörghuber, Rainer Schultes, Anja Lunze, Dr Manja Epping and Saufung Ma

Life sciences companies innovate rapidly and many of their employees, who drive the research and development on which these businesses are built, are necessarily party to commercially sensitive technical and commercial information. Employees are now also very mobile. Hence disputes often arise when former employees use information for their new employer that they have learnt at their previous company. The situation is exacerbated when the business operates across national boundaries, because although the European Commission has recently proposed a directive for the harmonisation of trade secrets law across the member states, no such consistency of approach currently exists. Businesses therefore have little certainty when sharing information under terms of confidence. In this article, our lawyers from Austria, Germany and the UK explain their respective national approaches to the issue of ex-employees in possession of trade secrets.

Under Austrian law, there is no specific definition of a trade secret, even though the term ‘trade secret’ (Geschäftsgeheimnis) appears in several laws. According to the majority opinion among Austrian scholars, a trade secret is defined as a fact and/or knowledge of an economic and commercial nature…

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