AIPPI 2017: Business as usual for trade secrets litigation, claims Australian judge
There has not been an uptick in the number of trade secrets cases filed in Australia, despite growing awareness of the form of protection, according to Justice David Yates of the Federal Court of Australia.
“The court has a large share of IP litigation in Australia. We see a constant stream of confidential information cases,” explained Yates, who took part in a panel discussion called “The best kept (trade) secret: a real life scenario” at the 2017 AIPPI World Congress in Sydney yesterday, October 15.
The judge went on to add that it was “business as usual” for trade secrets litigation.
However, awareness of such cases is growing, along with a number of legislative movements across the globe.
“As things now stand, unharmonised laws and procedures make our jobs as litigators significantly more challenging, although perhaps a bit more interesting,” explained James Pooley, founder of law firm James Pooley, in a video.
“The importance of trade secrets is global, as is the problem of protecting them,” he added.
In the US, the Defend Trade Secrets Act (DTSA) was signed into law in May 2016, implementing federal protection for trade secrets.
Linda Lecomte, partner at Wuersch & Gering, was hesitant to say where the trend of trade secrets protection is going because the DTSA is still quite new.
She said that following decisions such as Association for Molecular Pathology v Myriad Genetics and Alice v CLS Bank, there has been a shift in companies looking more to trade secrets protection, particularly in the software area.
Annsley Merelle Ward, senior associate at Bristows and one of the panel’s moderators, had opened the panel with the statement that trade secrets are “arguably more important today than they ever have been”.
She added that some are becoming “disenfranchised and a bit frustrated with the patent system”, while trade secret protection is seen as cheaper and easier than patent protection.
For Lucas Kenny, senior legal counsel at storage and data management company NetApp, there has been a decrease in the importance placed on patent protection.
This is partly driven by the unique nature of storage and analysis techniques—“specifically, it’s hard to identify a new inventive step for patent protection,” he said.
There is also an increasing awareness around trade secrets cases, according to Mark Ridgway, partner at Allen & Overy and co-moderator, which is causing companies to look at these issues and work out what they can do to protect themselves.
Moving on to trade secrets in Germany, Judge Dr Matthias Zigann, of the Munich Regional Court, explained that trade secrets litigation is not so popular because procedural laws are not plaintiff-friendly.
This could all change when the trade secrets directive (2016/943) is implemented in Germany. EU countries must bring into force the law and administrative provisions necessary to comply it with by June 2018.
“The directive is fantastic, because it will raise the bar of best practices for mid-size companies,” added Catherine Mateu, partner at Armengaud Guerlain.
The 2017 AIPPI World Congress is taking place between October 13 and 17.
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