Hedging (into) Property?—Invisible Trade Secrets and International Trade in Goods

Trade secrets can encompass all forms of intellectual property subject matter, as well as other types of data, information, and knowledge that may not meet the threshold of eligibility for intellectual property rights. Trade secret protection may be used to prolong existing exclusivity or to hedge the balance of interests that the law aims to seek through restrictions to such exclusivity. Against this backdrop, this chapter asks whether, and to what extent, the law of trade secrets can be used privately to create a regime of property rules in an age of digitised trading, using the recently adopted EU Directive on trade secrets as an example. It asks whether the forms of protection and enforcement required under the EU Directive make it a de facto property right, hedging a liability regime into a proprietary regime, which is created unilaterally by ensuring secrecy and by imposing a duty of confidence.

MODELLING A BLOCKCHAIN SOLUTION FOR INTELLECTUAL PROPERTY MANAGEMENT IN DIGITISED INDUSTRIAL ENVIRONMENTS

In the industry 4.0 vision, the competitiveness of companies is based on innovation, business-to-business collaboration and digitalisation. In such collaborative frameworks, the sharing of trade secrets depends to a greater or lesser extent on the degree of trust between the parties involved in the collaboration. This paper proposes an application model for trade secret protection based on blockchain, using the smart contracts support and tokenization capabilities available in the Ethereum network. The application of the model along the value chain of the collaborative industrial environment promotes the sharing of industrial secrets with the guarantee provided by blockchain technology, increasing trust and added value in the relationship. Keywords: Industry 4.0, blockchain, innovation, intellectual property, knowledge management

Obtaining Evidence in Patent Litigation and Trade Secret Protection – A Tale of Two Poles

In this article, the authors compare how the courts in two different jurisdictions handle trade secrets in patent litigation. Even though the two countries observed, Finland and Germany, are both continental European civil law systems with similar legal traditions, the approach to trade secret protection in litigation is quite different in many aspects. While Finland already has comparatively sophisticated legislation and jurisprudence when it comes to the protection of trade secrets, the German approach is rather different, and could be compared to a patchwork carpet. In this article, the authors review the international and European legal framework before delving into the details of the two national legal systems. Finally, they give guidelines on how to harmonize trade secret protection in litigation in order to strike a fair balance between the different interests at stake.

Zivilprozessualer Geheimnisschutz im Anschluss an das Gesetz zum Schutz von Geschäftsgeheimnissen

The author examines the protection of trade secrets in civil proceedings. He focuses on analysing the new regulations for procedural trade secret protection by the German Act on the Protection of Trade Secrets (GeschGehG) and the Directive (EU) 2016/943. Whereas trade secret holders previously faced the choice of either losing the case or losing their secret, the author provides practical advice on the application of the new regulations between the conflicting poles of effective trade secret protection and procedural access to information in order to ensure sufficient protection. Furthermore, he argues for revising the §§ 16 et seq. GeschGehG, especially to extend their scope of application to all civil proceedings.