Know How To Protect Your Know-How

Author:Ms Joanelle O'Cleirigh and Colm Maguire
Profession:Arthur Cox
 
FREE EXCERPT

Organisations should take steps now to ensure their valuable know-how and business information can be classed as a 'trade secret' to obtain the protection offered by new Irish Regulations.

The Irish Trade Secrets Regulations transpose the EU Trade Secrets Directive into Irish law, and will benefit those seeking a remedy for the unlawful acquisition, use or disclosure of their trade secrets.

The Regulations place trade secret protection on a statutory footing for the first time in Ireland. Until now, trade secrets were only protected through the common law action for breach of confidence.

WHAT IS A TRADE SECRET?

A trade secret, as defined by the Directive, is information which:

is secret, in the sense that it is not generally known or accessible; has commercial value; and has been subject to reasonable steps to keep it secret. The recipe for Coca-Cola is the classic example of a trade secret, but trade secrets come in many forms and most organisations will have valuable knowhow and business information of some description. The definition of a trade secret in the Directive is broad enough to encompass a business plan, pricing strategy, supplier or customer list, formula or process, for example.

IS IT BETTER TO SEEK PATENT PROTECTION?

In some cases an invention cannot be patented because it does not meet the necessary criteria for patentability or it may not make commercial sense to seek patent protection (as obtaining a patent requires the disclosure of the invention). In such cases trade secret protection may be an effective alternative.

Unlike patents, which last only for 20 years, trade secrets are protected from the time of their creation and remain protected indefinitely, provided they are kept secret.

WHAT STEPS CAN YOU TAKE TO PROTECT YOUR TRADE SECRETS?

While you do not need to register a trade secret to obtain protection, there are certain steps organisations should take to proactively protect their valuable know-how and business information. Taking these steps now will likely reduce the risk of having to bring costly legal proceedings to stop someone from unlawfully using or disclosing your trade secrets. It will also mean that, in the event that legal proceedings are necessary, your case will not fall at the first hurdle as you should be able to demonstrate to the court that you took reasonable steps to keep the information secret. In summary, you should:

Identify the information that you regard as a trade secret and ascertain...

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