FALL 2010

Trade Secrets

 

Course No. 9200-704 (& 804)-801

ID No. 85737 & 85736

Time:  W 6:30 - 9:30 p.m.
Room:  W-215
Professor Jay Dratler, Jr.
Room Across from 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2002, 2003, 2006, 2008, 2010   Jay Dratler, Jr.   For permission, see CMI.

TRIPs Agreement's Trade-Secrecy Provisions

      Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPs Agreement"), Section 7, Art. 39, Annex 1C to Agreement Establishing the World Trade Organization, reprinted in H.R. Doc. 316, 103d Cong. 2d Sess. 1621, **** (Sept. 27, 1994)

SECTION 7:  PROTECTION OF UNDISCLOSED INFORMATION

Article 39

1.  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.

2.  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 practice(1) 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.
3.  Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use.  In addition, Members shall 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.

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Footnote

1.   [TRIPs Agreement's footnote 10]  For the purpose of this provision, "a manner contrary to honest commercial practices" shall mean at least 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.

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