Undisclosed information or trade secrets are a category of intellectual property which regards any confidential commercial or industrial information that confers a competitive advantage to a company. More specifically, any undisclosed information that a natural person or a legal entity legitimately holds, which may be used in any productive, industrial, or commercial activity and is capable of being passed on to a third party shall be considered a business secret.
This protection mechanism is advantageous to protect those inventions which are not patentable (i.e. it does not meet the minimum requirements or the subject matter is not eligible for protection). Special consideration is required for the test data for pharmaceutical products, which are also protected by undisclosed information regulations.
Unlike patents or other intellectual property rights, the differential of trade secrets is that they protect precisely that technical or valuable information is not disclosed to third parties. Therefore, the protection mechanism lies with the owner of the information. It should also be noted that it does not have a time limit so that the secret can be protected indefinitely, which will depend on the possibility of reverse engineering or copying of the technology. Such regulation protects this secrecy by punishing anyone who obtains such information illegally.
It is important to highlight that trade secret protection is fundamental when a party wants to transfer know-how or protect an invention that could not be patentable, being a central element in the processes of technology transfer.
Regarding Latin America, free trade agreements have affected the rules on trade secrecy or test data protection. It is therefore possible that there is a regulatory discrepancy concerning the nature of the protection conferred of undisclosed information and test data. This variety may mainly affect what is understood as undisclosed information and whether the regime of protection against unfair competition applies or is based on specific provisions or case law relating to protecting confidential information.
The objective of the Project, in this first instance, is to conduct a comparative study of the regulatory and jurisprudential situation of trade secrets and test data in Latin America. To this end, it is proposed to carry out a questionnaire containing the main aspects of trade secrets and how case law has interpreted the scope of this right. It also seeks to establish the treatment of know-how in the legislations under analysis. About the countries under study, it is proposed to use the key countries of the initiative.
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