Undisclosed information refers to information which is secret and has commercial value because it is secret. Undisclosed information, or ‘trade secrets’, is protected in the TRIPs Agreement under the framework or discipline of unfair competition. There are important differences between the protection conferred under unfair competition and the protection conferred by other forms of IPR protection, especially patents:
- A patent owner obtains exclusive rights. This means he is the only one who can use the invention, commercialize the product etc. A patent owner can prevent any other person from using that invention. Even if a third party has developed the same product/process in an independent manner, without taking the technology of the patent owner, he is not allowed to use it, since the exclusive rights conferred are absolute. This is why, in economic terms, a patent confers a monopoly right. In the case of undisclosed information there is no exclusive right. If a third party develops the same information independently, this third party can use that information.
- The philosophy is not to give exclusive or monopoly rights, but to provide protection against unfair competition and against dishonest commercial practices, such as industrial espionage.
- TRIPs does not create property protection for undisclosed information, but just refers to its possession. This is another important difference with a patent or trademark, in respect of which the owner has ‘property’.
- The value of undisclosed information does not lie in innovation or novelty - even a list of clients can be protected, though obviously this is not an invention - but in the fact that it has commercial value and in the fact that it is secret. So there should be measures to protect such information from disclosure; under TRIPs, this is an obligation.
- Unlike patents, which in general last for 20 years, in the case of undisclosed information there is no defined time limit. Undisclosed information is protected as long as it is kept undisclosed, as long as it is secret. The duration of the protection therefore depends on the factual situation, not on any legal provision.