International Intellectual Property

In the international regime Trade Secrets are enforced on a country-by-country basis. Most nations use standards of unfair competition or breach of a duty as the basis for their protection.

Recently, however, more international authority is being applied to protect such information, especially as part of trade agreements. Those treaties set out obligations for the individual country to adhere to. The two international agreements covering trade secrets that most affect the United States are:

All member states of the WTO are required to provide basic trade secrets protection by virtue of Part II, Section 7, Article 39 of the TRIPS agreement, Protection of Undisclosed Information. Access to judicial proceedings, damages, and enforcement are covered in Articles 42 to 49. The U.S. has accepted those TRIPS provisions.

Imposes trade secret protection obligations on the signatory states in Chapter 17, Article 1711. NAFTA even contains provisions on information disclosure if required for approval of pharmaceutical and chemical product use.

The U.S. does not have a national trade secret statute, but both the

Economic Espionage Act of 1996, Pub.L. 104–294, 110 Stat. 3488, and the

Computer Fraud and Abuse Act, 18 U.S.C. 1030, provide for relief in cases where extraterritoriality triggers federal jurisdiction.

Case law also allows for protection against foreign entities engaging in unfair competition and importation. Trade secrets can be one of the factors involved in such litigation. See, Tian Rui Group Co. Ltd. v. Int'l Trade Comm'n, 661 F.3d 1322 (Fed. Cir. 2011), where the ITC invoked jurisdiction and imposed sanctions under §337 of the Tariff Act, 19 U.S.C. §1337, as amended.

Bills: H.R. 844 - Protect American Trade Secrets Act of 2023

"This bill explicitly grants extraterritorial jurisdiction over civil claims for conduct involving trade secret theft occurring outside the United States and impacting U.S. commerce, including conduct by an offender who is (1) not a U.S. person or lawful U.S. resident, or (2) a foreign organization."

An earlier bill, H.R. 5233 in the 113th Congress died in committee. However, the Judiciary Committee Report for that 2014 version, H. Rept. 113-657 set out detailed definitions, penalties and requirements for enforcement.

The EU, after a multi-year process, adopted Directive (EU) 2016/943, on "...the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure"

An April 2014 In-Depth Analysis Report by the Directorate General is here.

This is an EU Trade Secrets public information page with policy discussions and document links.

Trade Secrets Throughout the World,
law school log in required.

Restrictive Covenants and Trade Secrets in Employment Law: An International Survey,
law school log in required.

Trade Secrets Protection in Europe, from IPR2, a concluded EU-China co-operation initiative.

Elizabeth R. Rowe, Trade Secrets, Trade and Extraterritoriality, 66 Ala. L. Rev. 63 (2014).

Trade Secrets: European Challenge in a Global Economy, from the International Fragrance Organization.

David P. Fidler, Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies
Vol. 17, Issue 10, ASIL Insights, March 20, 2013.