In November 2013, after the Commission presented the proposal for the directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, better known as the Directive on the protection of Know-How (1), the Commission, the European Parliament and Council finally reached a preliminary agreement on 15 December last.
The proposed Directive introduces a common definition for the concept of “trade secrets” as well as the mechanisms, via civil proceedings, by means of which the victims of the misappropriation of trade secrets are able to obtain compensation, thus seeking to establish a harmonization in this sense at European level.
The main novelties as regards the original text presented in 2013 are as follows:
1- Emphasis has been placed on this as a minimum directive, in which each state can raise its standards, except in those cases when the former expressly indicates the maximum.
2- The fact that illicit behavior will have no protection under this directive has been highlighted.
3- The intention has been to seek a better balance between freedom of expression and the protection of trade secrets.
4- In principle, reverse engineering is legal, although this may be qualified at a national level.
5- The requirement for the trade secret to be obtained “in a deliberate manner or with gross negligence” without the consent of its owner for the same to be considered illegal has been suppressed.
6- It is left to the states to establish the period of limitations during which the plaintiff may take action. This period may not, in any case, be superior to six years.
7- Emphasis is placed on maintaining confidentiality during legal procedures, increasing the measures that the courts may take to this end. These dispositions are also in line with the project for a Unified Patent Court.
It is expected that this directive will be definitively approved during the present year. The states will have a period of two years to transpose the same into national law. On the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure