Trade Secrets & Its Protection as Intellectual Property: Revisiting IPR Regime

Abstract

‘Trade Secrets’ is that genre of information that is hard to define, classify and ascertain. Motivated by various aspects that it entails, researchers across the globe have attempted to highlight various aspects of trade secrets and to determine essential factors that lie beneath. There has been a considerable provocation towards a demand for a more ‘codified and comprehensive’ mechanism of protection and enforcement of the trade secrets. Some of the observationists have defined trade secrets from an IP perspective and some from the industrial view. Dissenting from one or the other, there are two demands at the same time: First being the suggestion to include trade secrets as a ‘species’ of IPR and to afford efficient protection within the IPR regime, and the second being a separate creation of ‘sui generis’ system for the protection of trade secrets.

It is not just the fact that this debate remains amongst the academicians only, but this propaganda has been tested at various levels of industry. Ranging from various research oriented institutes to IP industries, the question whether trade secrets per se deserve a protection within the IP regime or necessitate a separate comprehensive system of protection and enforcement; has led to a considerable event of discussion. Repeated clarifications reveal divergent opinions as to the parameters that may be introduced to justify the required protection and competency of IP regime to address the issue far better.

Specifically in India, comparative studies are done to match the levels of industrial progress and rate of development. Being a developing country, India is over-receptive and rapid conclusions are cited based on such comparative studies being conducted at various levels. This furthers the idea that is central to the propaganda. Whether this comparative study is really a useful tool to draw conclusions for the issues associated with trade-secrets remains a core objective of this research report.

Another pertinent question that comes for justification is that whether there is some sort of innovative ideas behind this mission or is just a follow-up of the thumb rule that is proposed by the western countries and is received and interpreted by the developing countries without any furthered thought whatsoever. Added to this is the issue that whether silence of TRIPs (being a sole international instrument for unified perception over intellectual property) allows for such a wide interpretation that newer species of intellectual property could be added to the protection blanket? This research report addressing the questions as highlighted above; is aimed to test the viability of protection to trade secrets on the one hand together with analyzing the perpetual effects of the two regimes that are agitated as adequate, efficient and comprehensive protection system.

Keywords: Trade Secrets, Intellectual Property, Trade Secrets Protection