The proposed directive on trade secrets

Trade secret protection varies across EU member states, with some member states notably offering little by way of protection. Accordingly, the European Commission has published a draft directive on the protection of trade secrets with the aim of providing a clear and uniform level of protection across the EU. This will have implications for English law and for businesses in the UK and throughout the EU.

Unlike most types of intellectual property right, trade secrets are not subject to their own protective regime, as is the case with, for example, copyright or patents. Instead, in English law, trade secrets are dealt with under the common law rules regarding breach of contract and confidence, rather than by reference to a statute.

Key of course is the definition of ‘trade secret’. The draft directive defines a trade secret as information that meets each of the following requirements: it is secret, i.e. it is not generally known among, or readily accessible to, persons within circles that normally deal with this kind of information; it has commercial value because it is secret; and it has been subject to reasonable steps under the circumstances to keep it secret…

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