Confidential Information
Trade Secrets Protection in TRIPs
April 2005
Updated 24 Dec 2005
The Agreement on Trade-related Aspects on Intellectual Property Rights ("TRIPs") is one of the agreements concluded at the end of the Uruguay round of negotiations on the renewal of the General Agreement on Tariffs and Trade. Membership of the World Trade Organization is therefore conditional upon minimum standards of protection of intellectual property.
Structure
Art. 2 (1) requires member nations to comply with arts. 1 to 2 and 19 of the Paris Convention for the Protection of Industrial Property. Art. 10bis of the Paris Convention binds adhering countries to assure nationals of such countries effective protection against unfair competition which is defined as "any act of competition contrary to honest practices in industrial or commercial matters." Art. 39 of TRIPs provides:
"In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3."
Protection of Undisclosed Information
Art. 39 (2) requires:
"Natural and legal persons shall have the
possibility of preventing information lawfully within their control from
being disclosed to, acquired by, or used by others without their consent in
a manner contrary to honest commercial practices so long as such
information:
(a) is secret in the sense that it is not, as a body or in the precise
configuration and assembly of its components, generally known among or
readily accessible to persons within the circles that normally deal with the
kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the
person lawfully in control of the information, to keep it secret."
A footnote to the text explains that “a manner
contrary to honest commercial practices” means practices such as breach of
contract, breach of confidence and inducement to breach, and includes the
acquisition of undisclosed information by third parties who knew, or were
grossly negligent in failing to know, that such practices were involved in
the acquisition.
Protection of Test and other Data
Art. 39 (3) requires members to protect undisclosed test or other data that may be submitted as a condition of approving the marketing of pharmaceutical or of agricultural chemical products using new chemical entities where the collection or compilation requires considerable effort against unfair commercial use. Such members must protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.
