Looking Back To Move Forward: An Exploration of the History of Trade Secrets in the World as a Lesson for India

The focus of this article is on how countries around the world protect their Trade Secrets, in their own different and varied form and growth or otherwise of its protection over the past centuries. Tracing the history will result in an understanding of the effectiveness of the various mechanisms used for protection of Trade Secrets in the past. Over the course of the past centuries, Trade Secrets have emerged as an independent mode of Intellectual Property (IP) rights protection rather than being overshadowed as an alternative to patent protection in the interregnum. An analysis of different countries over the duration of centuries reflects this aspect. Scholars have also contributed to this narrative by their finding based on what are firm‘s preferences for retaining the most important of their innovations.[2] This article begins with eras wherein there were variations across countries in the existence of Trade Secrets systems that would then be reflected in cases in how it influenced the innovation strategies of inventors in the country. There has also been an influence on how other laws work in the country that can be accorded to protect Trade Secrets. [3] An illustrative survey of countries which have adopted various models has been used.

EUROPE (5TH TO 15TH CENTURY)

Writings of Dionysius of Halicarnassus, a Greek rhetorician and historian(Rome, late 1st Century BC) mention slaves in Rome which give an indication that slavery existed from the very foundation of Rome.[4] Conquests of neighbouring states was one way that slaves were brought in: some were granted citizenship while others became slaves with a point in time when there were more slaves than free citizens.[5] Complete control over a slave resulted in retention of Secrets and this resulted in enabling the tracing of the law of Trade Secrets to Roman law.[6] In this period, slaves formed the largest group of employees,[7] others being free men. The culture of artisans especially in the early crafts of pottery and dyeing also provided the impetus for the need to engage in secrecy measures so that the practices that brought about commercial gains could be retained.[8] The prevention of practices on the communication and the enticement thereof of business Secrets resulted in action servi corrupti[9] (this roman terminology translates to the act of a person corrupting the slave of other by extorting information used in a trade or for the making of an product)- a protection granted to the owner of the slave-owner against a competitor who maliciously induces a slave to give away or steal Trade Secrets for whether it be plans or formulas. This intrusion by the a practice continued with restrictions put on buying by Popes at numerous periods.[12] In the Middle Ages the social position of the employed artisan advanced from slavery to guild-restrained craftsmanship moving from one stage to the other. This was also the time period where English courts engaged with enforceing the protection of those Secrets of a technical nature which employees could carry with them from employment to employment.[13] These early cases dealt with the medieval crafts before the industrial revolution, but as machines and technical vocations became more and more commonplace, the early protective restraints on employees and competitors assumed new ramifications. This was in sync with the realization that handing down of Trade Secrets from father to son, like the formulas for the mixing of ingredients for cymbals (336 years in the Zildjian family), are no longer possible with expansion of businesses and a growth in workforce. A good example is the Secrets formula for Coca-Cola would still hand down through generations of the original compounder‘s family. Influence of the workforce from outside is avoidable.[14] Trade secrecy was part of European guilds in the Middle Ages.[15] Economic and legal historians allege that prior to the Middle Ages the world had known no unfair competition.[16] In this era too cases in United Kingdom have condemned binding of defendant by plaintiff for carrying on trade as a dyer for six months.[17] These sightings will be seen in Indian cases too in both chapters 3 and 4.

INDUSTRIAL REVOLUTION

This section looks at countries which offered some sort of protection to Trade Secrets. This includes UK, USA and France. The follow up of all three countries is in the forthcoming eras (1801-1900, 1901-2000, 2001- till date) is also discussed in this chapter so that an evolution or change of the laws from the middle ages till date is provided. For other nations of the world, better exploration is possible after the first industrial revolution that led to more manufacturing opportunities. In the United Kingdom, As found in the previous era and among European countries, Trade Secrets began in guilds. In the United Kingdom (UK), there was an interesting development of the establishing of the Royal Society in 1660 that would enable writing of descriptions of the trade and industries that would them be made publicly available- something that was met with refusal from craftsmen resulting in the abandonment of the programme.[18] an oath to secrecy of the trade when working with the master. Bye-laws and ordinances also came across to the aid of London guilds which housed the manufacturing hub of UK. These bye-laws and ordinances brought about some kind of restrain from members revealing and teaching the trade to outsiders. An ordinance with at least one instance of enforcement is see in 1601-2 wherein members of the company of pewterers were asked to reform the job so that the abuse of the people who work openly can be curtailed.[19] Enforcement of this ordinance can be seen in 1625 with a complaint by Robert Mullins that another guild member worked openly in his shop that would then prejudice the craft as it was made accessible to all. The guild ordered that this should not be the case and ensured measures to make sure that such disclosure does not happen. A case of the Cloth workers of Ipswich (1615) is relevant for the chapters 3 and 4 is with court stating that the kind of restrictions that guilds impose on its members …in a case that dealt with William Sheninge, a tailor who was removed from the guild as a result of practising in the city thereby providing access to the trade.[20] The court decided that these kind of restrictions that would result in monopoly of the guilds. In the United States of America, in September, 1789, 21 year old Samuel Slater boarded a ship in London to New York to work as a farm hand. What he did not disclose was that he was a recently-released apprentice to a cotton mill in New York and had with him a wealth of information regarding the working of cotton mills in America, using techniques that were still not known in Britain. Samuel found ready employment at a cotton spinning factory and brought in a revolution to the hand operated and old technology. Within one year, Samuel used his resources of recollection, made the tools himself and experimented with adjustments w.r.t. the inventions that he made and created America‘s first automated textile mill that went on to be successful. What had happened in the interregnum is that by fifteen years before Samuel left, England had criminalized both the export of textile machinery and the emigration of textile mechanics. He had therefore committed a criminal act by leaving the country after learning the craft. This narrative shows the first available instance of industrial espionage and stealing of Trade Secrets. This is classified as one example of an unfair head start on the Industrial Revolution that USA got by stealing Secrets. This aspect however is disagreed with by scholars.[21] In this regard, there was the presence of Trade Secrets during the first industrial revolution, with less understanding of the legal aspects as we know of it now.

The 19th century saw the beginning of international agreements that came into force providing an outline of how to protect unfair competition. This becomes relevant as in protecting Trade Secrets, the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement references the protection provided in the Paris Convention is against unfair competition. During this era, various countries were also exploring options to protect their Trade Secrets, with or without sui generis protection. Article 10bis of the Paris Convention for the Protection of Industrial Property, 1883 highlights the nature of protection against unfair competition. Article 1 of the Paris Convention[22] defines the scope of industrial property originally covered, which the TRIPs Agreement that came about in the upcoming century (1994) extends by explicitly providing for protection of undisclosed information. United States of America has its first reported case dates in 1837.[23] In 1868, in Peabody v. Norfolk,[24] court make a description of breach of confidence and noted both the right to an injunction for breach of trust as well as the inclusion of Secrets methods as part of the goodwill of a business that can be sold.[25] The court discussed at length the fact that protection of Secrets information should go beyond simple breach of contract; instead the court discussed both implied and express contracts and implied and express duties. By 1907, Trade Secrets were well embedded in the law, and the California Supreme Court declared the unwarranted disclosure of confidential information and Trade Secrets, etc., will always be protected by equity. [26] This era was the point in time where scholars and courts were engaged in the discourse of shifting Trade Secrets away from the strict property view. Professor Bone attributes this to a shift to legal positivism and realism in which the natural law view of Trade Secrets as property was rejected in favor of social goals.[27] Justice Holmes‘s 1917 Supreme Court opinion in the E.I. Du Pont De Nemours Powder Co. v. Masland[28] case presented a conflict between the right of property and a right to make a full defense.[29] This resulted in the formulation of Trade Secrets in the Restatement (First) of Torts, 1923 in which a property justification for Trade Secrets is expressly rejected. It is telling that Trade Secrets are described in the section entitled ―Interference with Advantageous Economic Relations‖ wherein Trade Secrets were now clearly considered to be a part of unfair competition, and even today Trade Secrets are Competition, 1987. The unfair competition and breach of confidence view of Trade Secrets continued, and to a large extent still continues as the modern view of Trade Secrets. In 1979, the National Conference of Commissioners on Uniform State Laws recommended the Uniform Trade Secrets Act, 1979, amended in 1985. This law takes no position on whether or not Trade Secrets are property, but it does set forth a broader and more protective version of Trade Secrets law than was present in the Restatement. Over the next decades numerous states enacted some version of the UTSA, till the consolidation and resultant Defend Trade Secrets Act, 2016. Subsequently cases of Kewanee Oil Co. v. Bicron Corp.[30] and Warner Lambert Co. v. Execuquest Corp.[31] also came up which spoke exclusively about Trade Secrets. In United Kingdom, aspects relating to Trade Secrets evolved in England during the Industrial Revolution, with the growth of technology and know-how.[32] England‘s first brush is established to be in the 1817 case of Newberry v. James,[33] and with another in the same year,[34] with the Chancellor admitting about the protection of contracting parties in this scenario of case, a point resonates true even today, in the 21st century. This period showed acceptance of the retraining concept by courts which allows masters to restrain newly freed apprentices from using their Trade Secrets to compete.[35]

ERA FROM 1901-2000 (20TH CENTURY)

This era saw international efforts for the consolidation of Intellectual Property Rights, including Trade Secrets. It was also the century where few countries brought about sui generis legislation to protect Trade Secrets. Nevertheless few countries like United Kingdom protected Trade Secrets by way of torts, employment law, contracts, patents, criminal law and aspects of a continuing wrong. The General Agreements on Tariffs and Trade (GATT) entered into on April 15, 1994 has 128 nations of the world on board[36] was the result of the Uruguay Round of GATT. GATT brought about TRIPs, under which ‗undisclosed information‘ must ―be protected against use by others without the consent of the owner if the use is contrary to honest commercial practices. Also, there is third-party liability for misappropriation if third parties knew or were grossly negligent in not knowing that such information had been obtained dishonestly.‖[37] In Section 7, Article 39 (2) of TRIPS, three essential conditions is laid down to be fulfilled by any information before it can be considered as confidential information. For the secrecy in information to be retained, and for it to be continued to be a Secrets, it must not be generally known by or readily ascertainable to competitors. If the status of A known example of a Secrets being retained as a Trade Secrets is the formula of Coca-Cola. This formula is not known to anyone as of now and is deemed to be the best kept Secrets.[38] If however, the competitors were to know or find out the Secrets of the formula for making coca cola, it would no longer be deemed to be a Secrets. The presence or absence of commercial value is an important consideration for the protection of trade secrecy. As a result, any customer list will not get be considered to be protected as Trade Secrets, as customers are persons that fall under common knowledge in the same marketplace.[39] Hence, that customer list will be protected that has the potential for independent economic value – for example – a customer list comprising of persons who could be potential buyers. From that list only a select few will actually purchase the product: these are the ones that have independent economic value and the ones that should be protected. The conclusion therefore is that it is not independent economic value of the information in general that can be said to claim under Trade Secrets but that information of independent economic value which by being known to another can earn economic value from its disclosure that can be protected under Trade Secrets. This is why Indian courts have held that just a customer list will not qualify as confidential information.[40] In the Du Pont case, the emphasis of the courts with relation to the fact that the information in question should be kept as a Secrets, for which reasonable measures should be taken. Special emphasis is laid on the aspect of ‗reasonable‘ measures. It also needs to be noted that the measures taken to protect Trade Secrets need to be reasonable (relative) and not be absolute, based on the circumstance.[41] WTO members comply with this obligation in a variety of ways. So, even in the absence of a sui generies Trade Secrets legislation, countries all over the world have protected Trade Secrets by way of contracts (avoiding it breach), confidence (under tort, looking into breach of confidence), and in most parts making them part of criminal remedies too.[42] As far as the claim of Trade Secrets and know-how is concerned India does not have relevant laws which allow protection to Trade Secrets and know-how specifically, however, i.e. not to deny that common law remedy is available to the claimants.[43] It is however, the meaning of Trade Secrets that has always been elusive. TRIPs Agreement has mentioned the ingredients that constitute a Trade Secrets. It is widely considered that Trade Secrets are considered as confidential information even though this might not be always true. One such example is the use of algorithms. This is relevant in the case of product pricing in business is considered algorithm are considered as ‗Trade Secrets.‘[44] NAFTA is a treaty entered into by the United States, Canada, and Mexico; it went into effect on January 1, 1994 and carries a provision directed to provide uniform minimum standards for protecting Trade Secrets. Article 1711(1) states that there shall be legal means for persons to prevent Trade Secrets from being disclosed to, acquire by, or used by others without their consent of the person lawfully in control of the information in a manner contrary to honest commercial practices. It seems quite clear that NAFTA protection of Trade Secrets is almost the same as that provided by TRIPs to undisclosed information.[45] In Japan, from June 15, 1991a national Trade Secrets law was enacted known as the Unfair Competition Prevention Act (UCPA). In it, any ‗technical or business‘ information that has commercial value and is not in the public domain is a Trade Secrets.[46] When Trade Secrets is acquired by extortion, theft or fraud, or unauthorized use or disclosure of a lawfully acquired Trade Secrets for unfair competition, then a claim for infringement can be filed. Infringement brings about a claim for damages and injunctive relief, and also destruction of articles manufactured as a result of the infringed Trade Secrets. The bar for protection set by Japanese courts is very high with companies required to take extraordinary measures to protect their Trade Secrets. This dissuaded many companies from asserting their Trade Secrets rights in Japanese courts. This aspect has been taken note of and in the recent years, Japanese courts made it easier to prove the existence of a Trade Secrets and afforded Trade Secrets greater protection. Nevertheless, statutory causes of action and remedies remained deficient. In 1991, Korea amended its laws that previously had no mention of Trade Secrets protection.[47] The statute today was enacted during the litigation between GE (USA) and a Korean firm that had acquired GE Trade Secrets from a former GE employee.[48] The present statute, the Unfair Competition Prevention Act (UCPA) defines Trade Secrets and misappropriation as infringing acts.[49] One of the common disputes that arise in Trade Secrets misappropriation cases centres revolve around the question as to whether a mere employment of the company‘s former employee, who has been exposed to the company‘s Trade Secrets, by the competitor is sufficient to make out a case of misappropriating the company‘s Trade Secrets by the competitor.

passed the Commercial Wrongs Act (the Act) that refers mandates Trade Secrets should be protected as such. The Act defines Trade Secrets as business information of all kinds which is not in the public domain, is not easily discovered or detected by others, provides to its owners a business advantage over their competitors; and has been kept Secrets by its owners using means deemed reasonable under the circumstances.[50] This is in sync with Article 39, TRIPs. Additionally, lawful reverse engineering does not violate the provisions of the Act.[51] Also, there is a criminal statute of 1977 that prohibits the disclosure of Trade Secrets by an employee. There is also the presence of employee contracts that refrain employees from using Trade Secrets and industrial know-how. There is an also the role that implied obligation of confidentiality plays between employers and employees.[52] In United Kingdom,Secrets are protected by the equitable notion of confidence. As explained by Lord Denning in Seager v. Copydex[53] Trade Secrets depends on the broad principle of equity which states that a person who has received information in confidence should not be allowed to take unfair advantage of it and thereby make use of it in a manner prejudicial to one who gave it to him. The equitable approach to third parties is confirmed in Attorney General v. Guardian (No. 2) (the ―Spycatcher case‖),[54] where Lord Griffiths observed: “In a case of commercial Secrets, with which the development of the confidence has been mostly concerned, a third party who knowingly receives the confidential information directly from the confidant, which is the usual case, is tainted and identified with the confidant’s breach of duty and will be restrained from making use of the information . . . . Each case will depend on its own facts and the decision of the judge as to whether the third party should, as a matter of fair dealing, be restrained, or ......whether the conscience of the third party is affected by the confidant’s breach of duty. However, third parties cannot be reached by the duty of confidentiality where they have acted in good faith. For example, a third party cannot be prevented from using information which he has arrived at by honest means.”[55] English courts have held that even if there is no contractual nexus between the parties, liability arises if the confidentiality of the information is obvious.[56] The Law Commission recommended that there should be a broader duty so as to prevent disclosure of information, even if it is attained rightfully. Tort of Malicious interference is also taken into consideration in contractual matters while deciding Trade Secrets matters.[57] (UTSA), enacted by forty-eight states of USA (with some modifications in language), defines a Trade Secrets as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.[58] In the USA, Trade Secrets law has primarily developed through the state common law embodied in torts. The Restatement of Torts 1939 states the most widely used definition of a Trade Secrets in the United States of America. It reads: Restatement (First) of Torts § 757 (1939) states that a Trade Secrets may consist of any formula, pattern, device or compilation of information which is used in one‘s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other Secrets information in a business (see § 759) in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount or other terms of a Secrets bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A Trade Secrets is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.[59] In the USA, The Restatement of Torts, 1939 states general principles of law that have gained widespread acceptance with most state courts cited the Restatement, those courts adopted different principles to different degrees hence not bringing in uniformity.[60] The Restatement (Third) of Unfair Competition § 39 (1993) defines Trade Secrets as information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and Secrets to afford an actual or potential economic advantage over others.[61] including all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if the owner thereof has taken reasonable measures to keep such information Secrets; and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.[62] These definitions are relatively clear in their comprehensive understanding of what comes within the preview of Trade Secrets and has become a definition of sorts for the courts. It has been said that the Restatement of Torts, in-spite of certain flaws continues to remain the universal starting point for defining Trade Secrets and the rights and liabilities therein from the torts viewpoint. The rise of the use of tort for Trade Secrets litigation was the result of Trade Secrets law not having crystallized around any particular patter.[63] Looking at the history of the EEA, the act came into force due to an increased reporting of theft of Trade Secrets in America by foreigners. The EEA also resulted in a subsequent harmonization of Trade Secrets law in USA, erstwhile characterized by the passing of the Uniform Trade Secrets Act in many American States. The EEA so passed under the Bill Clinton administration coincided with the economic prosperity of the United States and was drafted in a post-Cold War era. Though a relatively militarily peaceful time for USA, with the closing down of the market for political and military spies, the spies were soon known to be adapting their trade to industrial espionage. The adaptation of former spies to economic espionage resulted in a series of incidents involving spy allegations. Subsequent acquisitions of American assets by Chinese and Japanese entities alarmed American businesses. All of this coupled with an economy boom and with the process of shifting to an ever more information base, the bulk of potentially valuable information was becoming exposed to theft, thereby resulting in the EEA. From the erstwhile recognition of Trade Secrets as a civil action, the EEA enlarged the contours to include it under the ‗criminal‘ ambit thereby making it a felony. Other changes were also incorporated including broadening of the definition of Trade Secrets, including extra-territorial jurisdiction. relationship,[64] or other illegal conduct,[65] the exploration of the rule in this case is much broader than before in the Dupont. Court in Dupont adopted subsection (a) of the Restatement which recognizes a cause of action for the discovery of Trade Secrets by any improper means. Going further, both the nature of torts: tort of misappropriation and tort of breach of confidence are discussed in the forthcoming portion of the chapters. All these laws struggle to find the perfect definition of Trade Secrets, and even though Trade Secrets find mention in TRIPs, there is no precise definition for the information that can be classified and ascertained as Trade Secrets. These dilemmas have led to a considerable provocation towards a demand for a more ‗codified and comprehensive‘ mechanism of protection and enforcement of the Trade Secrets to understand whether an IP perspective is required, or a common law approach is favourable.[66] In Ruckleshaus v. Monsanto[67] revived the property view of Trade Secrets. The ‗taking of private property‘ would be the result of a federal law in Monsanto that required the public disclosure of Trade Secrets and would then subsequently need to be compensated under the Fifth Amendment.[68] There has been a lot of going back and forth in the property aspect of Trade Secrets with the courts beginning with such a view before deviating from it and then upholding it once again. The courts back and forth was essentially towards the misappropriation angle before sliding back to the property aspect of Trade Secrets, a resurrection found in Ruckelshaus v. Monsanto Co. The contrary viewpoint of the property aspect, as mentioned by courts compartmentalize Trade Secrets into two kinds of value: monopoly and use. Some courts, based on this essential distinction have stated that as only the use value will be affected as a result of misuse of the Trade Secrets, it cannot be treated as property. [69] The peculiar nature of Trade Secrets emerges precisely from this point that Secrets once revealed cannot be remedied with the traditional doctrines of getting back the legal and equitable title.[70] It is also in USA that the dispute between the how to protect an invention best that has given rise to the patent v. Trade Secrets debate. As in the case of Kewanee Oil Co. v. Bicron Corp.,[71] that recognized Trade Secrets as perfectly viable alternatives to patents.[72] This case held that the federal patent law does not pre-empt state Trade Secrets law. Subsequent Supreme Court decisions, Aronson v. Quick Point Pencil Co.[73] and Bonito Boats, Inc.v. Thunder Craft Boats, Inc.[74] have, if anything, further strengthened the basis for Trade Secrets reliance. Information which the defendant acquired innocently, that is, without knowing that it was a Trade Secrets belonging to a person who did

a Trade Secrets under English law.[75] However, under American law, a person who learns of a Trade Secrets innocently, without notice, is liable after receipt of notice unless he can prove that he has in good faith paid value for the Secrets or has so changed his position that to subject him to liability would be inequitable. It is well established that no liability attaches to the use of information, which it was in the public interest to use or disclose. If the information is used or disclosed in accordance with a statutory obligation or power, the defendant is not liable. For instance, if the information is disclosed pursuant to a court order, or otherwise for the purpose of legal proceedings, it comes within the exemption. Similarly, the use or disclosure in the interests of national security or for the prevention, investigation or prosecution of crime is permissible. However, the disclosure must be to someone who has a ―proper interest‖ to receive the information in question.[76] Canadian Trade Secrets law is, apart from the province of Quebec, common law in nature. Breach of confidence, as in United Kingdom, is the core protection of confidential information in Canada. Business information is one of the types considered confidential when it met the aforementioned elements. In Tree Savers International Ltd. v. Savoy,[77] as factual example, plaintiff‘s former employees were found liable for using their employer‘s clients list to procure business for a competing company formed by the employees after they left their jobs. In the concept of breach of confidence, the obligation of confidence is a crucial parameter and does not arise where the information is divulged in public or in other circumstances that negate the duty of holding it confidential. This objective test focuses on the relationship between the parties. The types of relationships in which such an obligation is said to arise can be divided into three broad categories of fiduciary relationships of trust, [78] contractual relationships wherein information would not be passed beyond the contract, [79] and employee-employer relationship based on fidelity.[80] The obligation of confidence under tort law can result in a breach of confidence that may result in a breach of confidence. In Peter Pan Manufacturing Corp v. Corsets Silhouette Ltd.,[81] the duty not to use information of a process was extended to circumstances where information was given by one trader to another and the latter made use of it to compete with the former. This trend can also be found in the decision by the Delhi High Court in Diljeet Titus v. Alfred Adevare & Ors.,[82] wherein court protected the works done by the defendant in the plaintiff‘s law firm as an employee of the firm for contract of service. There are other acts in USA that touch on the topic of Trade Secrets. The Freedom of Information Act, 1976 wherein the power of federal government is found to demand and obtain valuable private Trade Secrets information. Under early United States common law, privilege was used to protect the country‘s defense functions, intelligence-gathering methods and abilities, and foreign diplomatic relations. While the Supreme Court formally recognized privilege in 1953, weapon innovation became a more important facet of military power than ever before. In Brazil, the Brazilian Industrial Property Law (henceforth ―BIPL‖) establishes that disclosing, exploiting or using, ―without authorization, confidential knowledge, information or data, which can be used in industry, in trade or in the providing of services, except that which is public knowledge or is obvious to a person skilled in the art, to which access was had by means of a contractual or employment relationship, even after termination of the contract‖ is a crime of unfair competition as well as a civil violation. The same is true to the acts of disclosing, exploiting or using, without authorization, such undisclosed knowledge or information, if it has been obtained by unlawful means or to which access was had by fraud. Besides these two express prohibitions of the law, the BIPL also grants that ―[T]he injured party shall be assured the right to receive loss and damages in compensation for the loss caused by acts of infringement of industrial property rights and by acts of unfair competition not provided by this Law, which tend to prejudice one‘s reputation or business, or to create confusion between commercial, industrial or service providing establishments, or between products and services offered in the course of trade‖.[83] Article 138 of the 1945 Industrial Property Code which was kept partially in force by the 1971 Industrial Property Code until it was superseded by the 1996 Industrial Property Law; defined as one of the crimes of unfair competition disclosure or use of manufacturing or business Secrets.[84] Brazil is one of the countries other than USA and China to have a defined legislation for protection of Trade Secrets. This is not to say that Brazil does not have its share of problem in its present Trade Secrets legislation. Brazilian law, for example, on Trade Secrets does not define confidential knowledge, making it difficult for the judicial system to determine the information to be protected by the law.[85] In China, The Law against Unfair Competition of the People‘s Republic of China (the Unfair Competition Law) was promulgated by the State Council in unknown to the public, can bring economic benefits, is of practical value, and for which the rightful party has adopted measures to maintain its confidentiality.[87] China‘s law on Trade Secrets, similar to that of UTSA is said to be questionably effective.[88] While adopting a law similar to UTSA, it was envisioned that the shortcoming of the UTSA would not make the Chinese law ineffective as the implementation would be different; however this was not meant to be.[89] In the recent years, the Justice Department under the Chinese government has launched the ‗China Initiative‘ in November 2018 with the aim of countering Chinese national security threats. It does so by identifying and prosecuting trade-Secrets and IP theft, hacking and economic espionage.[90] The recent development in the law in China as of 2019 is that the National People‘s Congress (NPC) added several amendments relating to Trade Secrets to China‘s Anti-Unfair Competition Law. The definition of Trade Secrets was expanded beyond strictly business and technology-related information. Now, a wider variety of commercial information qualifies for use in Chinese courts. By extending Trade Secrets to encompass all trade information, any procedure or system companies use to their benefit can be protected. Additionally, the new changes allow more parties to be implicated in cases regarding Trade Secrets theft. Previously, it was only business-affiliated individuals and entities who stole Trade Secrets who could be prosecuted in China.[91]

ERA FROM 2001 ONWARDS (21ST CENTURY)

The current century is seen as one where common law remedies were beginning to be seen as problematic, for example in UK and France. In EU problems relating to protection of Trade Secrets revolved around Trade Secrets management and enforcement as it was becoming opaque and costly to handle.[92] A solution for which was the proposed as a directive, the 2014 European Union Trade Secrets Directive.[93] In countries with legislation, fragmentation was seen as an issue and measures were taken to consolidate it, in USA for example with the Defend Trade Secrets Act, 2016. This era examines how far numerous legislation has come from the initial eras and what new has been added in jurisdictions without erstwhile codification/ protection of Trade Secrets. In France, The EU Trade Secrets Directive[94] was implemented into French domestic law[95] on July 26th, 2018. Undoubtedly the Directive looks to address the misappropriation of Trade Secrets that level. In France, no legislative definition existed though concept would be found in different codes, laws and regulations. The EU Directive adopted by France is hence a measure to harmonize and obtain remedies relating to infringement of Trade Secrets. The changes hence result in the definition of Trade Secrets in the section §L. 151-4of the French Commercial Code as information meeting the following three criteria: information not generally known or readily available to persons familiar with the same type of information, has real or potential commercial value, and is subject to reasonable measures of protection- same as the measures incorporated in TRIPs. Regarding misappropriation, the new §L. 151-4 of the French Commercial Code, is a Trade Secrets acquired unlawfully as a result of unauthorized access or practice contrary to dishonest commercial practices. Independent creations are considered outside the preview of misappropriation, with exceptions in case of legal requirement or authorization. Other aspects that find mention include rights of whistle-blowers. The relevant aspect with this thesis is the disclosure of information that is deemed to be Trade Secrets by employees in the necessary and legitimate exercise of their function. There are civil liabilities for deviants, and an absence of criminal remedy. This includes fines and other measures to prevent or put an end to infringement of a Trade Secrets. Alternatively, the French Commercial Code provides that in lieu of the measures permitting cessation of infringement of Trade Secrets wherein court may order compensation upon the infringed. There is also the provision for award of damages, bar of time period for initiation of judicial proceedings, abuse of process, maintaining secrecy during the course of legal proceedings. [96] In Germany, unlike the situation in France, protection of Trade Secrets is included in a specific statutory regime, the German Unfair Competition Act, 2004 (hereinafter UWG). These provisions provide penal sanctions. Also, civil liability provisions of the German Civil Code provide the basis for civil liability.[97] During employment relationship, comprehensive protection against theft and misuse of business and company Secrets by the employment contract even if the contract does not provide a non-compete clause is analyzed. After termination of employment relationship, no protection against competing activities of former staff members without post-contractual prohibition of competition which is in accordance with the statutory provisions of the German Commercial Code (HGB) and these include restrictions as to time, location and the type of the

part of jurisdictions of USA and France, that a staff member may make use of all memorized knowledge and experience gained while working for the given company including making such information accessible to third parties.[98] Tort liability under Sec. 823 ff. German Civil Code reads as follows: 1. Who by intent or negligence unlawfully injures the life, body, health, property or another right of another person is obliged to indemnify the other for the damage resulting therefrom. 2. The same obligation applies to the person violates a law that aims to protect another. In United States of America, As mentioned in the previous eras, the UTSA and the EEA were utilized for the protection of Trade Secrets. There was however, a felt need for a federal level legislation which would address the civil aspects of Trade Secrets misappropriation.[99] The problem associated with an absence of a federal law was that federal courts did not have jurisdiction to resolve civil issues of Trade Secrets, and this resulted in problems in cross-state cases and when cases have both civil and criminal aspects. The Defend Trade Secrets Act, 2016 (DTSA) was sought to solve both civil and criminal cases in regard to Trade Secrets, amend the EEA by adding a civil procedure aspect, have a federal jurisdiction, immunity protection to whistle-blowers,[100] promote employee mobility[101] and enable ex-parte seizures. The last measure of ex-parte seizures was criticized heavily, for the likely anti-competitive measures that could occur on the basis of the seizures, however, Out of the 300 cases from the first year of the legislation, only four has been granted a seizure.[102] Nevertheless, there has been criticism with DTSA creating more divergent trade Secrets law while increasing expenses.[103] The major flaw that was pointed out was that the it does not pre-empt state law and hence fails to balance the two competing concerns of Trade Secrets law, providing strong protection of Trade Secrets and encouraging employee mobility and fair competition- all of which the DTSA was supposed to clear. [104]

Location of Trade Secrets in law has a historical origin that predates statues of intellectual property, with traces found in civil and criminal law. The origins of Trade Secrets based in slavery, it provides the basis for examining the contemporary employer-employee relationship in this light. This will enable to examine the location of Trade Secrets in the area of employment that would result in examining the narrative is important and exists even today with theft from the employer being punishable. Present-day status of countries shows that their legal systems guarantee protection under numerous branches of law, from civil to criminal. The current century is seen as one where common law remedies were beginning to be seen as problematic, for example in UK and France. In the EU problems relating to the protection of Trade Secrets revolved around Trade Secrets management and enforcement as it was becoming opaque and costly to handle.[105] A solution for which was proposed as a directive, the 2014 European Union Trade Secrets Directive.[106] In countries with legislation, fragmentation was seen as an issue, and measures were taken to consolidate it, in the USA for example with the Defend Trade Secrets Act, 2016. It is also pertinent to note that the Judicial Impact Assessment (hereafter JIA)[107] in a report submitted to the ministry of law and justice emphasizes the extra load created on the judiciary by new legislation. Lastly, international pressure especially from The USA remains the foremost pusher for IP laws and stringent adoption of protection measures in India and with measures like the US Special 301 Report through which pressure is applied for amendment of IPR laws has placed India on the ―Priority Watch List‖ as recent as 2021[108] for its failure to amend its laws and conform to the IPR regime remain, India should avoid bending backward to please the developed world to ends detrimental to its economy and persons.

1. Secrets as defined in Kaumagraph Co. v. Stampagraph Co., 235 NY 1, 7 (1923), 138 NC 485, to mean ―something known only to one or a few and kept from others; anything hidden from general knowledge or observation; something not to be told.‖ 2. See generally, James J. Anton and Dennis A. Yao, Little Patents And Big Secrets: Managing Intellectual Property, 35 (1) RAND J. ECON. 1 (Spring 2004). 3. Petra Moser, How Do Patent Laws Influence Innovation? Evidence From Nineteenth-Century World Fairs, 95 AM. ECON.REV. 1214 (2005). 4. WILLIAM BLAIR, SLAVERY AMONGST THE ROMANS 3 (Treuttel, Wurtz, & Richter1947). 6. Arthur Schiller, Trade Secrets and The Roman Law, 30 COLUM. L. R. 837 (1930). 7. Id. 8. Herbert David Klein, Technical Trade Secrets Quadrangle: A Survey, 55 NW. U. L. REV. 437 (1960-1961). 9. Arthur Schiller, Supra note 65 at 841. 10. Id. 11. Arthur Schiller, Supra note 65 at 842. 12. HEINRICH P. DENZINGER, COMPENDIUM OF CREEDS, DEFINITIONS AND DECLARATIONS ON MATTERS OF FAITH AND MORALS (Ignatius Press 2012). 13. See, Colgate v. Bacheler, Cro. Eliz. 872, 78 Eng. Rep. 1097 (1596). And, Clerk v. Governor & Co. of Taylors of Exeter, 3 Lev. 241, 83 Eng. Rep. 670 (1685). 14. Herbert David Klein, Supra note 67 at 440. 15. Gary Richardson, A Tale Of Two Theories: Monopolies And Craft Guilds In Medieval England And Modern Imagination, 23 (2) J. HIST. ECON. THOUG. 217 (2001). 16. NIMS, THE LAW OF UNFAIR COMPETITION AND TRADE MARKS (Baker, Voorhis and Company1929). 17. Dyer‘s Case (1414) 2 Hen. V, fol. 5, pl. 26. In this case, Justice Hull stated that plaintiff had, by the defendant from carrying on his trade as a dyer (for six months)demurred upon him that the obligation is void, for that the obligation is against the common law, and by God, if the plaintiff were here, he should go to prison until he paid a fine to the King. 18. Kathleen H. Ochs, The Royal Society of London‘s History of Trades Programme: An Early Episode in Applied Science, 39 (2) J. HIS. SCIENCE 129 (1985). 19. See website and additional details, https://www.pewterers.org.uk/history-of-the-company-and-hall

20. COLIN ARTHUR COOKE, CORPORATION, TRUST AND COMPANY: AN ESSAY IN LEGAL HISTORY64(HUP: 1950).

https://www.ipwatchdog.com/2017/07/05/americas-industrial-revolution-based-trade-Secrets-theft/id=85377/ 22. Article 1: Establishment of the Union; Scope of Industrial Property (1) The countries to which this Convention applies constitute a Union for the protection of industrial property. (2) The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. (3) Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour. (4) Patents shall include the various kinds of industrial patents recognised by the laws of the countries of the Union, such as patents of importation, patents of improvement, patents and certificates of addition, etc. 23. Vickery v. Welch, 36 Mass. 523 (1837). This case involves the 1836 sale of a chocolate mill in Braintree, Massachusetts. In the sales agreement for the mill, the seller agreed to sell the mill, convey to the buyer the Secrets as to how to make the chocolate and deliver a written assurance that he would not give the Secrets to anyone else, all for the consideration of $2000 and eight annual payments of $7500. Two or three other persons in the company had knowledge of the seller‘s Secrets, but they had given a written oath not to divulge it. The buyer tendered the money; however, upon advice of counsel, the seller refused to tender to the buyer the written promise not to convey his Secrets to others. The seller argued that if he so bound himself, it would be an unlawful restraint of trade. The Massachusetts court upheld the terms of the contract and ordered the seller not to

reached the conclusion that there was no restraint of trade in this case since it was ―...of no consequence to the public whether the Secrets art be used by the plaintiff or defendant.‖ See also Pedro A. Padilla Torres,An Overview Of International Trade Secrets Protection From The International Trade And Investment Perspective,http://www.natlaw.com/pubs/spmxip14.htm. 24. 98 Mass. 452, 458 (1868). 25. If a person invents or discovers, and keeps Secrets, a process of manufacture, whether a proper subject for a patent or not, he has not indeed an exclusive right to it as against the public, or against those who in good faith acquire knowledge of it; but he has a property in it, which a court of chancery will protect against one who in violation of contract and breach of confidence undertakes to apply it to his own use, or to disclose it to third persons. 26. Empire Steam Laundry v. Lozier, 130 P. 1180, 1182 (Cal 1913). 27. Robert G. Bone, A New Look at Trade Secrets Law: Doctrine in Search of Justification, 86 CAL. L. REV. 241 (March 1998).

28. 244 U.S. 100 (1917).

29. The basic question before the court was whether aerial photography of plant construction is an improper means of obtaining another‘s Trade Secrets? The facts are as following: This is a case of industrial espionage in which an airplane is the cloak and a camera the dagger. The defendants appellants, Rolfe and Gary Christopher, are photographers in Beaumont, Texas. The Christopher's were hired by an unknown third party to take aerial photographs of new construction at the Beaumont plant of E. I. duPont deNemours & Company, Inc. Sixteen photographs of the DuPont facility were taken from the air on March 19, 1969, and these photographs were later developed and delivered to the third party. DuPont employees apparently noticed the airplane on March 19 and immediately began an investigation to determine why the craft was circling over the plant. By that afternoon the investigation had disclosed that the craft was involved in a photographic expedition and that the Christopher's were the photographers. same afternoon and asked them to reveal the name of the person or corporation requesting the photographs. The Christopher's refused to disclose this information, giving as their reason the client's desire to remain anonymous. Having reached a dead end in the investigation, DuPont subsequently filed suit against the Christopher's, alleging that the Christopher's had wrongfully obtained photographs revealing DuPont's Trade Secrets which they then sold to the undisclosed third party. DuPont contended that it had developed a highly Secrets but unpatented process for producing methanol, a process which gave DuPont a competitive advantage over other producers. This process, DuPont alleged, was a Trade Secrets developed after much expensive and time-consuming research, and a Secrets which the company had taken special precautions to safeguard. The area photographed by the Christopher's was the plant designed to produce methanol by this Secrets process, and because the plant was still under construction parts of the process were exposed to view from directly above the construction area. Photographs of that area, DuPont alleged, would enable a skilled person to deduce the Secrets process for making methanol. DuPont thus contended that the Christopher's had wrongfully appropriated DuPont Trade Secrets by taking the photographs and delivering them to the undisclosed third party. In its suit DuPont asked for damages to cover the loss it had already sustained as a result of the wrongful disclosure of the Trade Secrets and sought temporary and permanent injunctions prohibiting any further circulation of the photographs already taken and prohibiting any additional photographing of the methanol plant. The Christopher's answered with motions to dismiss for lack of jurisdiction and failure to state a claim upon which relief could be granted. Depositions were taken during which the Christopher's again refused to disclose the name of the person to whom they had delivered the photographs. DuPont then filed a motion to compel an answer to this question and all related questions. 30. 416 U.S. 470, 493 n.23 (1974). 31. 691 N.E.2d 545, 547 (Mass. 1998). 32. The relationship between current Trade Secrets law and the mobility of employees is discussed in Edmund Kitch, The Expansion Of Trade Secrecy Protection And The Mobility Of Management Employees: A New Hide Secrets To Success, WSJ A1 (July 1, 2002);Amir H. Alavi, Unfair Competition, Theft Of Trade Secrets And Employment Raiding, University of Houston Law Centre CLE Program on Corporate, Partnership and Business Law (June 2003); Patricia Driscoll and Pamela Baker, Judicial Interpretation Of Restrictive Covenants In A Knowledge Economy, 6(2) THE CLARION 32 (Fall 2007); Catherine L. Fisk, Reflections On The New Psychological Contract And The Ownership Of Human Capital,34 CONN. L. REV, 765 (2002); Rafael Gely and Leonard Bierman, The Law And Economics Of Employee Information Exchange In The Knowledge Economy 12 (3) GEORGE MASON L. REV, 651 (2004);Lara L. Kessler, Anna N. Bass and John W. Yeargain,‗You Belong To Me‘: Employer Attempts To Keep Employees From Quitting To Work For Competitors Via Non-Compete Agreements In Employment Contracts, 10 (2) J. L. ETHICAL REGUL. ISSUES 13 (2007); Katherine V. W. Stone, The New Psychological Contract: Implications Of The Changing Workplace For Labor And Employment Law, 48 UCLA L. REV. 519 (2001); Katherine V. W. Stone, Human Capital And Employee Mobility: A Rejoinder, 34 CONN. L. REV. 1233 (2001-2002); Katherine V. W. Stone, Knowledge At Work: Disputes Over The Ownership Of Human Capital In The Changing Workplace, 34 CONN. L. REV. 721 (2002); Katherine V. W. Stone, Legal Regulation Of The Changing [Employment] Contract, 13 JLPP. 563 (2003-2004). 33. In that case the parties had entered into a contract regarding the preparation and sale to the public of a certain medicine. It was agreed that the formula should be kept Secrets. In an action for an injunction against disclosing the Secrets together with other relief Lord Eldon denied the relief prayed for. It was stated in the opinion that the only way the relief sought could be made effective would be by a perpetual injunction. The injunction would be of no avail, explained the court, unless disclosure of the Secrets were made in order to enable the court to determine whether or not it had been infringed. Lord Eldon proceeded to leave the parties to litigate the matter on the basis of the profits that had been made. 32 Mer. 446, 35 Eng. Rep. 1011 (1817). 34. Williams v. Williams, 43 Mer. 157, 36 Eng. Rep. 61 (1817). important caveat into this analysis by stating that it is unclear from the test or the citation if this was a widely accepted rule, and there is no mention of how Trade Secrets was defined. See, Catherine L. Fisk, Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property 1800-1920, 52 HAST. L. J. 441 (2001). 36. 164 members as per latest updates and numbers available with WTO,http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm 37. S. K. Sandeen, The Limits of Trade Secrets Law: Article 39 of the Trips Agreement and the Uniform Trade Secrets Act on Which it is Based, in R.C. FREYFUSS & K.J. STRANDBURG (eds.), THE LAW AND THEORY OF TRADE SECRECY: A HANDBOOK OF CONTEMPORARY RESEARCH (Edward Elgar2011). 38. See Coca-Cola Bottling Company of Shreveport, Inc. v. The Coca-Cola Co., (107 F.R.D. 288 (D. Del. 1985). 39. More discussions on this topic are found in Chapters 3 and 4. 40. American Express Bank Ltd. v. Priya Puri, MANU/DE/2106/2006, an Indian case that will be discussed in Chapter 4. 41. Pioneer Hi-Bred International v. Holden Found Seeds, 35 F 3d 1226, 1235 (8th Cir. 1994); Gates Rubber Co. v. Bando Chem. Indus. Ltd., 9 F 3d 823, 848-49 (10th Cir. 1993). 42. OECD, CHAPTER 3. APPROACHES TO THE PROTECTION OF Trade Secrets 128 (OECD 2015). 43. Toyota Kirloskar Motor Private Limited and Ors. v. Competition Commission of India and Ors. MANU/TA/0062/2016. 44. KPMG, Trade Secrets Information Protection Strategy, 4 (March 2017). 45. The contracting countries of Mexico, Unites States of America and Canada must protect Trade Secrets from unauthorized acquisition, disclosure or use. Remedies must include injunctive relief and damages. In response to NAFTA, Mexico has amended its 1991 Trade Secrets law to permit private litigants to obtain injunctive

Secrets protection and redressal mechanism in place. Canadian Trade Secrets law is, apart from the province of Quebec, common law in nature. 46. The Unfair Competition Law was enacted in 1934, but contained no provisions about Trade Secrets. The Law was amended in 1990 to add civil provisions about infringement of Trade Secrets. Driving forces of the amendment were such as increasing mobility of labour forces, growing demand from business sectors and developments of international trade negotiation. In 2004, provisions of procedural protection, such as order to keep confidentiality, explicit authorization for closed trial session, were added to the Law in order to protect Trade Secrets from being disclosed to competitors through court proceedings. As to the criminal protection, the Japanese Government had been cautious to add criminal provisions to the Unfair Competition Law due to the potential tension with Constitutional rights including freedom to choose an occupation. However, criminal sanctions are introduced to the Law in 2003, and those provisions are reinforced in 2005.Article 2 Paragraph 4 of the Unfair Competition Law defines the term ―Trade Secrets‖ as: ―Trade Secrets shall mean technical or business information useful in commercial activities, such as manufacturing or marketing methods, which is kept Secrets and not publicly known,‖ http://www.ip.courts.go.jp/documents/pdf/thesis/060928_29_1.pdf 47. The Korean government amended what was then named the Unfair Competition Prevention Act to add provisions relating to protection of Trade Secrets, and renamed the Act as the Unfair Competition Prevention and Trade Secrets Protection Act (Trade Secrets Protection Act), 1998. 48. See, General Electric Co. v. Sung, 843 F. Supp. 776 (D. Mass. 1994). 49. Article 2.2 of the current UCPA defines ―Trade Secrets‖ as: technical or business information which: (i) has not been publicly disclosed, (ii) has an independent economic value, and (iii) has been maintained as Secrets with substantial effort. Article 2.3 of the UCPA further stipulates that any of the following acts shall constitute an act of Trade Secrets misappropriation: (i) acquisition of a Trade Secrets through theft, deception, coercion or referred to as ―act of improper acquisition‖), use or disclosure, to a third party, of the acquired Trade Secrets (including disclosure thereof to a third party while maintaining its secrecy); (ii) acquisition of a Trade Secrets, with the knowledge that an act of improper acquisition was involved with respect to the Trade Secrets or failing to know thereof due to gross negligence, use or disclosure thereof to a third party; (iii) use or disclosure, to a third party, of a Trade Secrets, with the knowledge gained subsequent to its acquisition that an act of improper acquisition was involved with respect to the Trade Secrets or failing to know thereof due to gross negligence; (iv) use or disclosure, to a third party, of a Trade Secrets by a person who has a fiduciary duty not to use or divulge the Trade Secrets under a contractual relationship and the like; (v) acquisition, use or disclosure, to a third party, of a Trade Secrets with the knowledge that the Trade Secrets was disclosed in violation of the fiduciary duty referred to in item (iv) above or failing to know thereof due to gross negligence; and (vi) use or disclosure, to a third party, of an acquired Trade Secrets with the knowledge gained subsequent to its acquisition that the Trade Secrets was disclosed in violation of the fiduciary duty referred to in item (iv) above or failing to know thereof due to gross negligence. 50. §5 of the Commercial Wrongs Act, 1999. 51. Id. at §6. 52. § 496, Penal Law, 1977. See also, Mark F. Schultz & Douglas C. Lippoedt, Approaches to Protection of Undisclosed Information (Trade Secrets) - Development Paper OECD Trade Policy Paper, (22ndJune, 2014), http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=TAD/TC/WP%282013%2921/FINAL&docLanguage=En 55. Mark D. Powell and Forrester Norall, Overview of European Trade Secrets Law, http://law.wustl.edu/Library/cdroms/IBL/License/Powell.htm. 56. Saltman v. Campbell, (1963) 3 All ER 413; Argyll v.Argyll, (1965) 1 All ER 611. 57. The leading case is Lumley v. Gye, (1853) 2 E&B 216 : 118 ER 749, popularly known as Opera singer case, where the Court recognized the tort. See Charles E. Carpenter, Interference with Contractual Relations, 41 HARV. L. REV. 728 (1928). 58. UTSA § 1(4) 14 U.L.A. 372 (Supp. 1989). 59. § 757, Restatement (First) of Torts (1939). 60. David S. Almeling, Four Reasons to Enact a Federal Trade Secrets Act, 19(3) FODHAM INTELL. PROP., MEDIA & ENT. L. J. 769 (2009). 61. § 39 Restatement (Third) Unfair Competition (1995).

62. 18 U.S.C. § 1839(3) (2006).

63. William B. Barton, A Study in the Law of Trade Secrets, 13 U. CIN. L. REV. 507 (1939). 64. See, Fishing Concepts v. Ross, 226 U.S.P.Q. (BNA) 692, 695 (D. Minn. 1985) (commenting that the law of Trade Secrets only protects Secrets information; where the employer voluntarily reveals information about its computer system, there is no Trade Secrets). 65. THOMAS R. VAN DERVORT, AMERICAN LAW AND LEGAL SYSTEM: EQUAL JUSTICE UNDER THE LAW 338 (West Legal Studies Tihomson Learning2000). 66. Id. 67. 467 U.S. 986, 104 S. Ct. 2862 (1984). 68. Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 SLR 311, 335-37 (2008). 69. Vandana Pai and Ramya Seetharaman, Legal Protection of Trade Secrets,1 SCC 22 (2004). 70. Id.at 25.

73. 440 U.S. 257 (1979). 74. 489 U.S. 141 (1989).

75. American Restatement of Tort Laws (1939) § 758(b). 76. Initial Services v. Putterill, (1968) 1 QB 396, 405. 77 81 Alta. L.R. (2d) 325 at 328 (Q.B.) (1991). 78. Jarman & Platt Ltd. v. I. Barget Ltd., (1977) FSR 260. 79. VIVIEN IRSIH, INTELLECTUAL PROPERTY RIGHTS FOR ENGINEERS 176 (Peter Peregrinus Ltd. 1994). 80. Hivac Ltd. v. Park Royal Scientific Instruments Ltd., (1946) 1 All ER 350. 81. (1963) 3 All ER 402.

82. 130 (2006) DLT 330.

83. Anon, Legal Protection of Trade Secrets in Brazil, http://www.ligue.org/uploads/documents/cycle%202015/Cycle%202015/Rapports%20B/2015rapportBbresilien.pdf 84. Id.at 8. 85. Padilla Torres, An Overview of International Trade Secrets Protection, http://www.natlaw.com/pubs/spmxipl4.htm(last accessed 0n 15/02/2021). 86. Became effective on December 1, 1993. 87. Article 10 of The Unfair Competition Law prohibits business operations from engaging in certain acts and the law also provides for the remedies in case of infringement of Trade Secrets. 88. Stephanie Zimmerman, Secrets‘s Out: The Ineffectiveness of Current Trade Secrets Law Structure and Protection for Global Health, 29 (4) PENN. ST. INT‘L L. REV. 777 (2011). 89. S. SamLi, The Viability of Trade Secrets Protection in China, http://www.iam-media.com/Intelligence/IP-Lifecycle-China/2016/Articles/The-viability-of-trade-Secrets-protection-in-China

Secrets on the rise, the US Justice Department Warns, SUN (22ndSeptember, 2019), https://www.cnbc.com/2019/09/23/chinese-theft-of-trade-Secrets-is-on-the-rise-us-doj-warns.html 91. Tim Jackson, New China Developments in Trade Secrets You Need to Know,ROUSE MAGAZINE (3rdJuly, 2019), https://www.rouse.com/magazine/news/new-china-developments-in-trade-Secrets-you-need-to-know/ 92. Swiss Report, Ligue Internationale Du Droit De La Concurrence Congress Stockholm, The Protection of Trade Secrets and Know-How Are countries providing enough or too much protection? (2015), http://www.ligue.org/uploads/documents/cycle%202015/Cycle%202015/Rapports%20B/2015rapportBsuisse.pdf 93. Tanya Aplin, A Critical Evaluation of the Proposed EU Trade Secrets Directive (July 18, 2014), King‘s College London Law School Research Paper No. 2014- 25, https://ssrn.com/abstract=2467946 or http://dx.doi.org/10.2139/ssrn.2467946 94. Directive (EU) 2016, 943 (8thJune, 2016). 95. By Law No. 2018-670 (30thJuly, 2018). 96. Marie Danis, Trade Secrets Better Protected by French Law and the Courts, (22ndNovember, 2018), https://www.august-debouzy.com/en/blog/1258-trade-Secrets-better-protected-by-french-law-and-by-the-courts 97. Andreas Splittgerber and Sebastian Rockstroh, Protecting Trade Secrets in Germany, (8thAugust, 2013), https://blogs.orrick.com/trade-Secrets-watch/trade-Secrets-laws/protecting-trade-Secrets-in-germany/ 98. Zirngibl Langwieser, Protection of Trade Secrets in Germany, http://www.liaa.gov.lv/files/liaa/attachments/7_interneta_veikalu_izveidosanas_vacija_tiesiskie_aspekti.pdf 99. Christopher Rebel J. Pace, The Case For A Federal Trade Secrets Act, 8(2) HARV. J. L.& TECH. 427 (Spring 1995). 100. Anon, Explaining the Defend Trade Secrets Act, (20thSeptember, 2016), s_law/publications/blt/2016/09/03_cohen/ 101. DTSA ―states explicitly that a person cannot be prevented from accepting an offer of employment because of his or her prior exposure to Trade Secrets.‖ 161 CONG. REC. S7252 (daily ed. 8th October, 2015) (statement of Senator Hatch). 102. C. B. Seaman, Introduction: The Defend Trade Secrets Act of 2015, 72 WASH.& L. L. REV. 279 (2015). See also, E. Goldman, Ex-Parte Seizures and the Defend Trade Secrets Act, 72 WASH.& L. L. REV. 286 (2015). 103. Danielle A. Duszczyszyn and Daniel F. Roland, Three Years Later: How the Defend Trade Secrets Act Complicated the Law Instead of Making It More Uniform, IP LITIGATOR (July/August 2019), https://www.finnegan.com/en/insights/three-years-later-how-the-defend-trade-Secrets-act-complicated-the-law-instead-of-making-it-more-uniform.html 104. Brittany S. Bruns, Criticism Of The Defend Trade Secrets Act Of 2016: Failure To Pre-empt, 32 BERKELEY TECH. L. J. 469 (2017) . See also, generally, Lauren R. Davis, Secrecy for the Sake of It: The Defend Trade Secrets Act, 83 BROOK. L. REV. (2017). 105. Swiss Report, Ligue Internationale Du Droit De La Concurrence Congress Stockholm, The Protection of Trade Secrets and Know-How Are countries providing enough or too much protection? (2015), http://www.ligue.org/uploads/documents/cycle%202015/Cycle%202015/Rapports%20B/2015rapportBsuisse.pdf (last accessed on 20/05/2021). 106. Tanya Aplin, A Critical Evaluation of the Proposed EU Trade Secrets Directive (July 18, 2014), King‘s College London Law School Research Paper No. 2014- 25, https://ssrn.com/abstract=2467946 or http://dx.doi.org/10.2139/ssrn.2467946(last accessed on 20/05/2021). 107. Find the report here: https://doj.gov.in/sites/default/files/judicialimpactassessmentreportvol2_0.pdf (last accessed on 26/05/2021). 108. US Special 301 Report, 2021, https://ustr.gov/sites/default/files/files/reports/2021/2021%20Special%20301%20Report

Assistant Professor of Law, VITSOL, Chennai, India