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Monday, 19 February 2018

BREAKING: UK IPO launches technical consultation on draft regulations transposing the EU Trade Secrets Directive

The AmeriKat is focused on answering the
UK IPO's trade secrets consultation
by 16 March 2018
Today, the UK Intellectual Property Office has launched a technical consultation on the EU Trade Secrets Directive and the draft regulations to transpose the EUTSD into UK law.  The UK government is seeking stakeholders' views on the approach taken in the regulations.  The website of the consultation can be found here and the consultation document here.  The consultation closes on 16 March 2018 - so less than a month to go!

The UK IPO describes the current status of the law as follows:
"The UK has a robust and well established legal framework that allows for the effective enforcement of trade secrets. Trade secrets are governed in the most part by the common law (case law) of breach of confidence and by contract.  
There is no statutory definition of what constitutes a trade secret in UK law. However, case law has ensured principles of law have been developed that apply in this area.  
As the UK already has a well-developed system of legal protection for trade secrets, the EU Directive does not require substantial changes to be made to UK law. It is our view that the majority of the Directive’s substantive provisions already exist in UK law, either in common law, statute or by means of court rules (for example, the Civil Procedure Rules (CPR), which govern civil proceedings in the High Court and county courts in England and Wales).  
However, we have identified a number of changes that we believe need to be made to ensure that the UK, in each of its jurisdictions, complies with the Directive in a transparent manner. In the main these concern limitation or prescriptive periods, procedural issues for the courts when hearing cases on breach of confidence in relation to trade secrets, and certain remedies."
At Annex A of the consultation document are the draft Regulations which set out the Government's proposals for implementing the EUTSD.  The proposals are summarized as follows:
"The proposed Regulations provide for a statutory definition of the term ‘trade secret’ and set out rules concerning time periods for bringing proceedings. The Regulations include provisions concerning the preservation of confidentiality of trade secrets during and after proceedings have concluded, as well as measures relating to interim orders for delivery up. They also set out time limits within which a claim needs to be brought after an interim order for delivery up has been made. The proposed Regulations include provisions relating to measures which may be imposed on an infringer and set out the factors that need to be considered. The Regulations also provide for compensation to be paid under certain conditions, set out the factors that need to be taken into account when awarding damages, and include measures concerning the publication of information relating to judicial decisions in legal proceedings for breach of confidence."
The AmeriKat is pushed for time just now, but there are several interesting issues that will be subject to a follow up report in the next day.  

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