Confidential information / trade secrets
IPO publishes consultation on Trade Secrets Directive (EU/2016/943)
The question
How will the UK implement the Trade Secrets Directive?
The background
On 8 June 2016 following a proposal from the European Commission, the European Parliament and Council adopted a Directive that aims to harmonise the national laws in EU countries against unlawful acquisition, disclosure and use of trade secrets.
The Trade Secrets Directive (EU/2016/943) will harmonise the definition of trade secrets across member states in accordance with existing international standards. That definition will essentially amount to "confidential information" under English law (ie not limited to the narrower concept of "trade secrets" as understood under English law).
The Directive aims to: (1) stop unlawful use and further disclosure of misappropriated trade secrets; (2) remove goods that have been manufactured on the basis of wrongly acquired trade secrets (3) provide a right of compensation for the damage caused by unlawful use or disclosure of trade secrets.
EU member states are required to bring into force the national law(s) necessary to comply with the Directive by 9 June 2018.
The development
The UK Intellectual Property Office (IPO) published a consultation on the implementation of the Trade Secrets Directive and the draft UK regulations in February 2018.
The IPO believes that the majority of the substantive provisions of the Directive already exist in UK law; so the draft regulations do not contain provisions dealing with the acquisition, use or disclosure of illegally acquired trade secrets. The proposed draft regulations are concerned primarily with limitation and prescription periods, procedural issues and remedies.
Why is this important?
The Trade Secrets Directive will provide more consistent and effective remedies for unauthorised use or disclosure of confidential information across the EU. The UK has confirmed that it will be implementing the Directive (notwithstanding Brexit).
Although the Directive is unlikely to result in significant changes in UK law or procedures that apply to confidential information claims, it will have a greater impact in some EU member states and it may increase awareness and focus on confidential information issues generally.
What next?
The closing date for responding to the IPO was 16 March 2018, after which the responses will be published in due course.
The Directive is to come into force any time between now and 9 June 2018, however no definitive date on implementation into UK law has been confirmed.