Until April 26, 2019, trade secrets were protected by the Unfair Competition Act, namely §§ 17 to 19 UWG. These provisions have now been repealed and integrated into the new law.
The following provisions entered into force:
• Introduction of a legal definition of trade secrets:
Trade secret means information which it is secret, has commercial value because it is secret, it has been subject to reasonable secrecy measures and the holder has a legitimate interests in order to keep the information secret.
This definition improves the old legal situation by standardising an objective criterion of “reasonable secrecy measures” instead of the previously required subjective criterion of “will to maintain secrecy”. In addition, the requirement of “legitimate interest in order to keep the information secret” also specifies the scope of protection, as companies cannot decide for themselves when a trade secret exists.
• Permitted actions are the acquisition of a trade secrets through independent creation and discovery, through reverse engineering and through the exercise of employees’ rights to information and consultation.
A very significant change in practice is that reverse engineering is now permitted without restriction to obtain a trade secret. Previously, this was only lawful under strict conditions.
• Unlawful acquisition through unauthorized access, appropriation of, copying, or any other conduct contrary to honest commercial practices, as well as the unlawful use and disclosure of trade secrets are prohibited.
• Most important change: introduction of exceptions, in particular of:
A whistle-blower is no longer liable to prosecution for the use or disclosure of a trade secret if the general public interest is protected. Contrary to the Directive, the intention of the whistle-blower is not decisive.
• Introduction of a justification provision to minimise the risk of criminal liability for press representatives or persons subject to professional secrets for breaching trade secrets.
Müller Schupfner & Partner’s patent attorneys and attorneys-at-law have closely monitored these developments of the new law for the protection of trade secrets and are therefore optimally prepared.
We will be glad to answer your questions and concerns concerning your know-how at any time.
Dr. Thomas Huber Katharina von Seydlitz-Kurzbach