INTERNATIONAL TRADE AND TRADE SECRETS :

In technology transfer a trade secret may be far more valuable than a patent. Some times a trade secret is not really a secret and may not be of much value either. In a technology package some part is usually unprotected information, even so the best way of obtaining this unprotected information is to buy from the suppliers. Companies must be assured trade secret protection, which they are enjoying in their respective countries under the international licencing agreements. As mentioned earlier, the value of a trade secret lies in its secrecy. If a company cannot ensure protection of its trade secrets in a foreign country, it will not do business in that country. Every company should therefore, take some important measures to protect its trade secrets.

A checklist for the identification of potential trade secrets owned by a manufacturing company has been devised which inter alia includes:

(i) technical information/research and development;

(ii) proprietary technology information;

(iii) proprietary information concerning research and development;

(iv) formulas;

(v) compounds;

(vi) prototypes;

(vii) processes;

(viii) laboratory notebooks;

(ix) experiments and experimental data;

(x) analytical data;

(xi) calculations;

(xii) drawings- all types;

(xiii) digrams- all types;

(xiv) design data and design manuals;

(xv) R&D reports-all types;

(xvi) R&D know-how and negative know-how (i.e. what does not work);

(xvii) Production/ process information;

(xviii) Proprietary information concerning production/process etc.

Some experts suggest that it may be prudent for the companies to conduct an intellectual property audit to identify the protectable business information. This will help the companies to assess the value of the information useful for their business. The intellectual property audit is the starting point for the development of a trade secrets protection programme as company’s portfolio of trade secrets is constantly changing. Some information becomes obsolete, new information is created which is extremely valuable and may be protected.

Once the audit is complete, the next step is to determine appropriate level of security necessary to protect different types of trade secret. There are six factors which need to be taken into consideration while determining whether information owned or used by a company is a trade secret in terms of the necessary level of security to ensure adequate protection of those trade secrets. These are:

— The extent to which the information is known outside the company.

— The extent to which the information is known by employees and others involved in the company.

— The extent of measures taken by the company to guard the secrecy of the information.

— The value of the information to the company and the competitors.

— The expenditures by the company (time, money, effort) in developing the information.

— The ease or difficulty with which the information could be properly acquired or duplicated by others.