WIPO杂志，第3/2013期（6月）

Tr ade SecreTS:The oTher IP rIghT p.2| BuIldIng IPawareneSSInanTIgua and BarBuda p.9|whaTdoeSITcoSTTo defend your IP rIghTS?p.23 Contents p.2Trade Secrets: the other IP rightp. 5Fast-tracking green patent applicationsp.9Building IP awareness in Antigua and Barbudap.14Why update the IP rights of broadcasters?– A view from Asiap. 18Berries, beverages & brandingp.23What does it cost to defend your IP rights?p.28In the courts: Monsanto v. Bowman:Supreme Court upholds patent holders’ rightsp.30In the news Editor:Catherine JewellGraphic Designer:Annick Demierre Front cover image:Credit:www.chileflora.comAba Distil’s new brand of beverage,Maquire®, combines pisco and the maquiberry which grows wild in the Araucaniaregion of Southern Chile. Acknowledgements:p.5Carsten Fink, Economics and Statistics Division, WIPOp.9Omar Katbi, Communications Division, WIPOp.14Carole Croella, Copyright Law Division, WIPOp.18Francesca Toso, Department for Africa and Special Projects,Matthijs Geuze, Brands and Designs Sector, WIPOp.28Philippe Baechtold, Patent Law Division, WIPO ©World IntellectualProperty Organization tradeseCretsthe other IP rightDeputy Director General, Innovation What kind of intellectual property (IP) is most often relied on by business to protectcompetitive advantage? Most people would answer with one of the best known areasof IP: patents, copyright, trademarks or designs. But they would be wrong. The mostcommon form of protection used by business is secrecy. Why then do trade secrets receive less attention than the other areas of IP? There areseveral reasons. First, secrecy does not involve a government registration process;it is implemented as a matter of practice by each business. Second, although thegeneral principles of trade secret law – also referred to as the law of undisclosed, orconfidential, information – are established in similar ways in most countries, there arefew common rules or regulations about enforcement. Third, secrecy disputes areusually secret, so they do not become part of the public debate. Recently, however, trade secrets have shot to the top of the news, with stories of“cyber-espionage” attacks on companies throughout the world, with spies using fakeemail messages to get inside corporate networks and trawl for useful information. Buttrade secret law is also getting a fresh look for more positive reasons, as a frameworkthat can enable collaborative innovation, often involving actors located in many differ-ent countries. Whatever the catalyst, governments and industry are clearly interested.Within the last year, major initiatives on secrecy have been launched by the EuropeanCommission as well as the US government. JusTwhATisATrADe seCreT? Most simply, a trade secret is information that you do not want the competition toknow about. The law generally protects not just secret formulas and designs, buteven simple facts, such as the features that might be introduced in the next iPhone,or which country a business intends to go into next. Secrecy has been a part of trade for thousands of years. For example, secrecy al-lowed a region of China to profit for centuries from clever harvesting of the silkworm’sthread, and it gave a family from Armenia a 400-year lead in producing the bestorchestral cymbals. Trade secrecy is a legal regime that protects relationships of trust. Before the industrialage, innovative craftsmen would keep their “tricks of the trade” closely held throughsmall, family-owned shops. However, as industry moved from the cottage to the fac-tory, there was need for a legal system that would enforce an employee’s promise ofconfidence about a secret process or piece of machinery. It is important to keep in mind that secrecy is a legitimate tool for businesses of allsizes. Enforcing business secrets has nothing to do with lack of transparency ingovernment. Although it may seem paradoxical, trade secret laws can enable andencourage technology transfer, because they provide a commercially reasonableway to disseminate information. Although some aspects of secrecy laws, such asdata exclusivity for drug companies (Art. 39.3 of the Agreement on Trade-RelatedAspects of Intellectual Property Rights (TRIPS Agreement)), can be controversial, thereis general agreement that confidential disclosure is beneficial in a modern economy.Indeed, keeping secrets – often information about customers and their needs and Secrecy has been a part of trade for thousandsof years. Trade secrecy is a legal regime thatprotects relationships of trust. Secrecy alloweda region inchina to profit for centuries fromclever harvesting of the silkworm’s thread. value because it is secret, and must be the subject of “reason-able steps” to keep it secret. This general formula for trade secretlaws has been adopted by well over 100 of the 159 membersof the World Trade Organization. preferences – is the main way that small and medium-sizedenterprises (SMEs) protect their business advantage. It is easier to un