The trade secrets protection in U.S. and in Europe: a comparative study - Núm. 24, Julio 2017 - Revista La Propiedad Inmaterial - Libros y Revistas - VLEX 735661473

The trade secrets protection in U.S. and in Europe: a comparative study

AutorChiara Gaido
CargoChiara Gaido is an Italian attorney whose practice is focused on IP matters and who earned an LLM that was jointly organized by the World Intellectual Property and the University of Turin -Italy as well as another llm from Benjamin N. Cardozo Law School - New York. Milán, Italia
Páginas129-144
129
the tde ecet otection in u..
nd in euoe: cotie tudy
chiaa gaid*
1. introduction
“Fatti non foste a viver come bruti ma per conseguir virtue e canoscenza” (Dante
Alighieri, La Divina Commedia, 1321, Inferno, Canto xxvi). Dante Alighieri, the
famous Italian poet who is considered the father of the Italian modern language,
wrote in his masterpiece that humans are created for the pursuit of virtue and
knowledge. In the modern society, perfect tools that consent the acquisition of
knowledge and that enhance its improvement are the Intellectual Property Rights
(iprs).
It is in fact well established that the main purpose of iprs and their consequent
protection is to allow the progress of society through knowledge, innovation and
new works of art. And this is particularly true with respect to know-how and in-
formation which has a special commercial value for the owner (i.e. trade secrets).
The aim of this paper is to give a legal comparative analysis of the new laws that
govern trade secrets protection in the United States and Europe related to the
impact that such laws may have on the business decisions adopted by companies.
In fact, only by understanding deeply these new legal regimes, companies will be
in the position to effectively protect their own trade secrets.
In light of the above, the purpose of the present paper is to highlight the
similarities and the dissimilarities between the two recently adopted regulations
in order to give useful guidelines to international companies who deal in both
geographical areas and to offer food for thought on how companies should render
the protection of their trade secrets more efficient.
* Chiara Gaido is an Italian attorney whose practice is focused on IP matters and
who earned an LLM that was jointly organized by the World Intellectual Property and
the University of Turin –Italy as well as another llm from Benjamin N. Cardozo Law
School – New York. Milán, Italia. Fecha de recepción: 28 de septiembre de 2017. Fecha
de aceptación: 24 de octubre de 2017. Para citar el artículo: Gaido, Ch. “The trade
secrets protection in U.S. and in Europe: a comparative study”, Revista La Propiedad
Inmaterial n.o 24, Universidad Externado de Colombia, julio-diciembre 2017, pp. 129-
144. doi: https://doi.org/10.18601/16571959.n24.06
130
    .º 24 - ju - cb  20 17 -  . 129 - 144
Chiara Gaido
The potential impact of trade secrets in the modern economy is undeniable. In
the form of know-how, they do not only form an alternative to patent protection
for an invention, but even if a patent is granted there is complimentary know-how
that is not included in the patent application. That know-how is then kept and
protected as a trade secret1. Just an example: the value of the Google algorithm for
search engine is without any doubt one of the most important asset of the tech
company and its loss would probably undermine the whole company, making it
for her almost impossible to recoup from such loss.
Therefore, the present paper will focus first its attention on the economic value
of trade secrets in our economy and the costs related to cybercrime and cyberes-
pionage, then, on the following two paragraphs, it will analyze the U.S. and E.U.
historical legal backgrounds that brought to the adoption of the two recent laws.
Subsequently, the heart of this article will be the comparative analysis of the provi-
sions of the laws at issue, pointing out the existing similarities and dissimilarities,
giving few highlights on a recent U.S. case law that represents the first concrete
application of the federal statute, to conclude finally with some potential sugges-
tions for companies that deal in both U.S. and E.U.
2. the economic value of trade secrets
The increased importance of iprs, including trade secrets, is nowadays indisputable.
Businesses, irrespective of their size, value trade secrets as much as patents and other
forms of intellectual property rights. They use confidentiality as a management tool
for business competitiveness and research innovation, covering a diversified range
of information, which extends beyond technological knowledge to commercial
data such as information on customers and suppliers, business plans or market
research and strategies. Small and medium-sized enterprises (smes) –particularly –
value and rely on trade secrets more, because the use of intellectual property rights
tends to be expensive and smes often do not have sufficient specialized human and
financial resources to manage and protect such rights.2.
The importance of trade secrets has increased through the years. David S.
Almeling perfectly depicts some of the reasons of such increase in the U.S. market.
In the author’s opinion, two elements of such increase are: 1) the fact that the
improvement of technology is making the misappropriation of trade secrets easier
(i.e. not only increasing the risk for those with a legitimate access to them but also
1 Torremans, L. C. The road towards the harmonisation of trade secrets law in
European Union. Revista La Propiedad Inmaterial. Bogotá: Universidad Externado de
Colombia, 2015, (20), p. 27-38 (p. 37). issn: 1657-1959.
2 European Parliament. Report on the proposal of a Directive of the European Parliament
and Council on the protection of undisclosed know-how and business information (trade
secrets) against their unlawful acquisition, use and disclosure, 2015, 7.

Para continuar leyendo

Solicita tu prueba

VLEX utiliza cookies de inicio de sesión para aportarte una mejor experiencia de navegación. Si haces click en 'Aceptar' o continúas navegando por esta web consideramos que aceptas nuestra política de cookies. ACEPTAR