New Directive for the protection of industrial secrets in the offing: an end to industrial espionage?
As borne out by a recent European Union survey, industrial espionage has become a major headache for tech firms, giving rise to the pressing need for legal changes in order to more efficiently safeguard industrial secrets. With this in mind, on November 28 the European Commission unveiled a new proposed directive, setting out new rules seeking to protect companies from the unlawful disclosure of their business secrets.
For many companies, industrial secrecy is the only legal means by which to protect their core assets, such as an algorithm, or a particular piece of know-how. Intellectual and industrial property is inefficient, as it expressly excludes the protection of the ideas and principles on which computer programs are based, as well as the plans, rules and methods for economic and commercial activities. Other means of protection, such as the Unfair Competition Law or the protection on offer under the Criminal Code, also fall some way short.
Within a context of piecemeal European legislation governing the protection of industrial secrets, the Commission is seeking to encourage innovation and attract foreign investment via the protection of companies’ know-how and confidential information.
Among the potential prohibitions that may be included in the Directive is one on using and disclosing industrial secrets or manufacturing or distributing infringing products deriving from the unlawful use of an industrial secret, meaning any products in which an industrial secret has been unlawfully and significantly used for its design, manufacture or commercialization. To this end, a range of measures has been set in place to enable victims to seek indemnification for the damage occasioned as a result of the unlawful appropriation of their information.
Garrigues Intellectual Property Department
