The law defines the minimum scope of the concept of trade secret protection as the protection of information that is lawfully controlled by a legal entity or an individual and that:
- is secret in the sense that it is not known or readily accessible, either in its entirety or in a specific combination or arrangement of its components, to persons within a specific circle who normally deal with such types of information;
- has commercial value because of its secrecy;
- in the specific circumstances, was subject to specific reasonable security measures by the person lawfully in control of the information, for the purpose of preserving its confidentiality.
A trade secret differs from all other types of secrets in that the information comprising it relates to an entrepreneur’s commercial activities and has commercial value.
As with other forms of intellectual property, the law on trade secrets establishes a number of eligibility criteria that must be met in order to qualify for legal protection.
A distinctive feature of this intellectual property right is that the assessment of a trade secret’s eligibility for protection is not conducted as part of a special preliminary procedure, but only when the right to a trade secret is infringed or contested and it is necessary to determine whether such a right exists at all.
The information must have actual or potential value by virtue of its being unknown to third parties. According to this criterion, information that is of no interest to the public, that cannot be used by third parties to achieve their own goals, and that no one would purchase if it were offered for sale is excluded from the category of trade secrets. Furthermore, information that has actual or potential value must be unknown to third parties.
Information constituting a trade secret must not be freely accessible on a lawful basis. If such information can be obtained by lawful means—for example, by reviewing publicly available data, analyzing samples of manufactured products, or consulting publications—it is generally not recognized as a trade secret.
When asked how the disputed information was obtained, the interested party must prove that the information was obtained lawfully.
The subjects of forensic examination and research related to innovation proposals may include:
- suggestion for improvement;
- a business entity in the form of technological (technical) solutions;
- information regarding organizational decisions that do not qualify as improvement proposals.
Forensic examinations related to innovation proposals are ordered when a court is deciding on a violation of an innovator’s rights.
When ordering expert evaluations or studies related to innovation proposals, the following materials must be submitted:
- a certified copy of the application for an innovation proposal;
- a certified copy of the certificate for an innovation proposal;
- a certified copy of the report on the implementation of the innovation proposal, the test report, etc.
- a copy of the calculation of the economic, technical, or other positive impact;
- relevant documents containing information about the business entity;
- relevant materials containing information about the process;
- other materials, depending on the issues to be addressed by the expert.
Indicative list of issues to be addressed:
Disputes over the recognition of rights
1. Does the information (please specify which information) contain elements of a trade secret?
2. Does the information (please specify which) contain elements of know-how?
3. Has any information (specify what) been obtained and used (by a legal entity or an individual entrepreneur) by reviewing publicly available data contained in the records (specify the sources of information) in accordance with the case file?
4. Was the information (specify which) obtained through the reverse engineering of product samples (specify the product samples) in accordance with the case file?
5. Does the information provided by (specify by whom) include any data indicating that the information (specify which) was obtained as a result of independent development or research (specify which)?
6. Does the «ААА» innovation proposal provide a solution to the problems described in the application and its attachments (drawings, diagrams, sketches, etc.)?
7. Was the «ААА» offer in use at Company «А» prior to the date the application for it was filed at that company, according to the case file?
8. Was the technological (organizational) solution to the problem set forth in Company «А» administrative (or other) documents sufficient for its implementation, according to the case file?
Disputes over rights violations
1. Does the product (organizational solution) «XXX» incorporate the features of an innovation proposal as described in the application and its attachments (drawings, diagrams, sketches, etc.)?