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Trade Secrets and Legislative Developments
Trade secrets are important assets of many businesses. They are the core of their competitiveness. Up to this day, they are not governed unitarily on a worldwide level and it is interesting to observe recent legislative efforts to overcome such disparities. Legislators seem eager to establish a more harmonized trade secret framework.
In May 2016, President Barack Obama passed the Defend Trade Secrets Act (DTSA). The DTSA is considered one of the biggest IP developments in years for the US as it extends the current regime to allow trade secret civil lawsuits under federal law. Up until now, such enforcement has only been addressed at state level with most states adopting their own versions of the pre-existing Uniform Trade Secrets Act. The DTSA provides for a number of enforceable remedies against trade secret infringements under federal law, in particular ex parte seizures, damages, reasonable royalties or exemplary damages, attorneys’ fees and injunctive relief. It also provides for specific whistleblower protection for employees, independent contractors and consultants and attempts to clarify that „reverse engineering, independent derivation or other lawful means of acquisition“ are not considered improper infringing acts.
In June 2015, the European Parliament voted on and accepted the new European Trade Secrets Directive (ETSD). The Directive has now entered into force and member states will have until june 8, 2018 to implement it. The ETSD defines trade secrets as any information that a) is secret, i.e., not generally known or readily accessible, b) has a commercial value because it is secret and c) has been subject to reasonable steps to keep it secret. The ETSD provides for an objective infringement test specifying unlawful infringement actions and a limited catalogue of exceptions (in particular for reverse engineering and whistleblower protection). The ETSD sets forth a range of enforcement remedies such as injunctions, seizure of infringing goods, recalls and damage- or similar compensation-claims.
The Swiss legal framework on trade secrets has not undergone remarkable revisions in the latest years. The Swiss legislator has not detected an urgent need to revise it as it is currently more or less aligned with the requirements of the ETSD.