La Comisión Europea ha difundido en fecha reciente dos documentos relevantes en material de propiedad industrial/intelectual. Uno relativo a la tutela de los secretos industriales o de empresa y otro sobre las denominadas copias parasitarias o imitaciones. Ambos Informes fueron elaborados por Hogan Lovells. En esta entrada me ocupo del primero: “Report on Trade Secrets for the European Commission”.
Este Informe trata de establecer cuál es el régimen de protección que reciben los llamados secretos de empresa en el ámbito europeo. Se parte de la propia dificultad de establecer cuál es el objeto de esa protección normativa y jurisdiccional, como señala el Informe en sus apartados 6 y 7 pág.2:
“6. There is no uniform definition of «trade secrets» within the EU. Some States (for example, the Czech Republic) appear to apply (formally or informally) the definition of «undisclosed information» provided in Articles 39(1) and (2) of TRIPS2.
7. What is protectable varies from State to State. In common law countries the law of confidence potentially protects all types of confidential and secret information whether it is commercial, industrial or personal. In some other countries, for example, Belgium and France, there is specific statutory protection against disclosure by employees and former employees of manufacturing or process information but different protection for commercial information”.
El resultado del Informe creo que se refleja con bastante claridad en lo que son sus consideraciones finales y conclusiones que merecen ser transcritas en su mayor parte:
“288. Trade secrets are important to industry and provide protection for the results of investment of time and money and research and development that are difficult to protect by other means. Their importance in industry seems to be growing.
289. The need for adequate protection has probably become even more important because technology today allows the simple and quick reproduction of documents and their transmission.
290. The law in relation to trade secrets in the EU is a patchwork. In some countries the protection is effective; in others – sometimes because of the difficulty in enforcement – the law provides inadequate protection. The law is also fragmented in some States in that different courts are competent to hear different aspects of a trade secrets case.
291. It would be advantageous if there were consistency as to the types of information that can be protected.
292. The enforcement action should not depend upon there being an existing contractual relationship with the defendant. Many cases of serious industrial espionage involve individuals or companies with whom no such relationship exists.
293. Although generally restrictions imposed by the law during employment are similar from State to State, the position varies to some extent post-employment. This is important because a large proportion of cases involve ex-employees. This issue is entangled with employment law and public policy and some differences are, perhaps, unsurprising. Member States attempt to reach a balance between the interests of the employer and employee. The balance varies from State to State. In some countries there is no protection post-employment or only in extreme circumstances. This limited, or lack of, protection can cause problems.
294. There are differences in approach to remedies available against «innocent» recipients of trade secrets. In some countries it is possible to prevent third parties making use of the information however innocent they are. In other cases it is necessary to show bad faith on behalf of that party otherwise nothing can be done. Where no injunction is available to prevent further use of the trade secret this may cause considerable damage to the owner.
295. There can be considerable difficulties in obtaining evidence of misuse and damage.
297. Complex technical trade secret cases may require specialist judges.
298. Including trade secret violations within the scope of the existing Enforcement Directive would assist in improving procedures. At least the same remedies should be available for trade secret infringement as for IP infringement. However, as it stands, Article 7 of the Enforcement Directive does not require States to provide effective search and seizure procedures. This provision might be reviewed.
300. The methods used to calculate damages might also be reviewed to ensure plaintiffs are properly compensated.
301. The courts need to have means to protect secret information during proceedings. This can be achieved with confidential schedules to pleadings and restricting the disclosure of information during trial and in the judgment itself. At the moment there is inconsistency between Member States on the use of «in camera» hearings (hearings excluding the public) and the protection of information contained in court documents.
303. Many countries have criminal remedies. However, although criminal proceedings may be appropriate these are probably not a substitute for effective civil actions.
304. Overall there are disparities across the EU in what can be protected, in what circumstances and what the courts can or will do”.
Madrid, 6 de febrero de 2012