Trade Secrets and Other Confidential Information Flashcards
Types of confidential information
- Personal information (privacy)
- Commercial information (trade secrets)
- Government information (state secrets)
Which article and convention protects againts unfair competition?
Article 10bis of the Paris Convention. Members shall protect undisclosed information in accordance with paragraph 2.
Conditions to protect honest comercial practices if information is:
- secret, not entirely or partly readily accessible to the relevant people in circles which deal which said information
- the information has commercial value because it is secret
- Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the invention, to keep it secret.
Which case built the test to establish a breach of confidence?
Coco v Clark
To show a breach of confidence, the claimant must show that:
- The information is capable of being protected
- The defendant owes the claimant an obligation to keep the information confidential
- The defendant used the information in a way that breached that duty
What are the requirements of information being protection?
- The plaintiff must be able to identify the referred information
- Must begin information by stating confidentiality
- Failure to specify information will lead to any action to be stuck out or be considered an abuse of the process
Is there a limitation on the type of information that be protected?
No. It can be anything.
Why is it important to be aware of the quality of information protected?
Courts will not protect trivial information or immoral information. Thus, remedies will be stopped.
Courts will avoid having to make moral judgements
Novelty on information protected.
If confidential information is not novel or not original, then its commonplace and cannot be a trade secret.
Thus, injunctions cannot be granted to protect information in the public domain
Reverse engineering on trade secrets
If it can be reversely engineered it is not confidencial. However, if its encrypted, this might look at how much effort do you require to decrypt it.
Relative Secrecy
A number of people must know the secret for the information to be in the public domain. Compared to the disclosure element of patents, this threshold is much higher.
It may depend on how commonplace the disclosure is, and wether performing searches is common.
Is moral obligation of confidence sufficient?
No. Must be a legal obligation.
How can one know that information is confidential?
It can be explicit or implicit. You can be told or you can consider the relevant factors to establish that this information was confidential.
Breach of confidence requirement
The knowledge or the expectation of the knowledge that the person breaching should know the information is confidential
What is the reasonable recipient test?
If a reasonable person in the shoes of the recipient should have realised information was given in confidence, then there should be an equitable obligation of confidence.
What role does a relationship play in confidence?
Some relationships is expected to be confidential:
- Doctor & Patient
- Banker and customer
- Husband and wife
- Solicitor and client (legal priviledge)
How can contractual obligations be imposed?
Expressly or Implicitly.
Do third parties have an obligation of confidence?
Yes, if they ought to appreciate information is confidential
Is there an obligation of confidence to employers?
Yes, it could be in the contract, but there is a defence in the case of whistleblowers.
Is there is a duty to disclose information from the employee to their employer?
No. Unless senior enough.
Restraint of trade clauses
Contracts may specify employees, cannot serve in a special area or for a specific time.
Is confidential information protected?
No, but highly confidential secrets are protected.
How to prove breach of confidence?
Demonstrate information must have been derived from the confider’s information.
- Direct evidence of derivation
- Indirect
- Pursuading court defendant could not have gotten there using legitimate sources
Damage in relation to breach
Not necessary to show damage, unless goverment secrets.
Irrelevant of damage or not for the rest
Defences for divulging trade secrets
- Consent or authorisation
- Public interest defence
- Statutory immunities
Is it breach of confidence if it’s consensual? How is that called?
No. It is called a licence.
What is the public interest defence?
Cannot force confidentiality obligation on crime or fraud. Confidence cannot exist in that scenario.
Remedies available in Breach of Confidence
- Injunction (to prevent disclosure of information)
- Monetary damages (equitable compensation)
Usually how much money a person would be paid to relax the obligation of confidence. - Other remedies: Delivery up, publication of breach or apology, constructive trusts
What is the springboard doctrine?
The springboard doctrine in trade secrets is a legal principle that prevents someone from unfairly benefiting from a misused trade secret, even after the information is no longer secret.
