11. September 2022 | 2022 World Congress

GENERAL: Protection of Trade Secrets during Civil Proceedings

By Ari Laakkonen, AIPPI First Deputy Reporter General and Linda Lecomte, AIPPI Assistant Reporter General

On Sunday, September 11th, the Trade Secrets Plenary Session of this Congress will provide a forum for the discussion of specific harmonized ways that trade secrets can, and should, be protected during court proceedings, including seizures. As highlighted by Linda Lecomte, Assistant Reporter General, and co-reporter responsible for this study question: "It can be difficult simply to commence litigation concerning trade secret or other confidential information in jurisdictions which require claims to be fully set out in written pleadings at the outset of a case, if some form of protection is not provided to the pleading.

Out of the 34 reports received from AIPPI's National and Regional Groups and Independent Members, all of the responding Groups believe that their laws with regards to protecting trade secrets disclosed during court proceedings could be improved.  Linda Lecomte commented: “The challenge for harmonization lies not only in encouraging countries to modify their currently established procedures, but, more fundamentally, assisting those countries not having yet any specific codified trade secret legislation.”  The Group Reports and Summary Reports are publicly accessible via the AIPPI library at www.aippi.org.

The Groups acknowledged the ever-present tension in maintaining a balance between protecting a trade secret and allowing an adverse party to defend against a misappropriation or other legal complaint.  A majority of the Groups agreed to limiting access to trade secret details by certain individuals involved in a litigation, but discussed during the informal Online Study Committee meeting prior to the Congress, that some country laws inherently may not support the non-disclosure of trade secret details, if at issue, to in-house/corporate personnel of a party. Further, there was much discussion by the Groups participating in the Study Committee about what it means to “re-gain” or recover a trade secret if disclosed, e.g., during a seizure or testimony, without a pre-signed confidentiality agreement or order.

Following the Online Study Committee meeting, a revised draft resolution was circulated and discussed during the in-person Study Committee meeting here in San Francisco last Saturday.  Jochen Buehling, chair of the Study Committee, was encouraged by the involved discussion by the Groups, stating: “We have had excellent discussion with the Groups, and are finding a common ground for a significant Resolution that we can bring back to our respective countries regarding specific ways to protect trade secrets during litigation. With this, we hope to encourage lawmakers and courts to develop the framework for best practices among jurisdictions internationally.”

Today, the draft resolution will be further discussed during a Plenary Session chaired by Dariusz Szleper, and later this week, it will be presented to the ExCo for approval.