Last month the UK Intellectual Property Office (“UKIPO”) published its draft regulations on the implementation of the EU’s Trade Secrets Directive 2016 (the “Directive”), which must take place before 9 June 2018, for consultation. The UKIPO is seeking input from interested parties primarily to ensure that the draft regulations effectively implement the Directive. The consultation is to run until 16 March 2018 and the Government will issue their response thereafter.
The Directive itself aims to standardise national laws to prevent “the unlawful acquisition, disclosure and use of trade secrets”. The Directive was borne out of the EU Commission’s concerns that trade secrets were unevenly protected across the EU, likely causing problems with enforcement.
The UKIPO make clear in the guidance accompanying the draft regulations that they consider the UK common law of breach of confidence to already adequately protect trade secrets and as such the changes set out in the draft regulations are minor.
They do provide for the entrenchment of the Directive’s definition of ‘trade secret’ into UK legislation (though note that even with this a very similar definition contained in the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property is already binding on the UK). The Directive defines a ‘trade secret’ as information that: is secret i.e. not known among or readily accessible to persons within the circles that normally deal with the kind of information in question; has commercial value because it is secret; and has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. In short if a company intends information to remain confidential it is a trade secret, but then there is also a positive obligation on businesses to take reasonable steps to keep those trade secrets secure so they be officially recognised as such.
Otherwise the draft regulations are relativity limited, addressing for example time periods for bringing a claim for breach of confidence (6 years), the preservation of confidentiality in the course of legal proceedings, measures to impose on infringers and allowances for compensation and damages for the infringed – though the UKIPO again points out in most cases that our common law already complies.