The Obama Administration released a report late last month entitled Administration Strategy on Mitigating the Theft of U.S. Trade Secrets detailing strategies the U.S. will take to combat trade secret theft, including the pursuit of enhanced foreign legal protections for U.S. trade secrets through ongoing and future trade agreements. Particularly, the Administration will seek to establish new trade secret protections in treaty member states, similar to those provided under U.S. law, in trade agreement negotiations such as Trans Pacific Partnership (TPP; Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, U.S., Vietnam, and potentially the Philippines).
Establishing harmonized trade secret protections in trade agreements—such as the TPP—will likely provide U.S. and treaty member state businesses trade secret protections in treaty countries beyond those currently provided under international IP law. The main standard for international trade secret law, Article 39.2 of the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), provides that signatory states must establish means for persons and entities to protect information that is: (a) secret; (b) commercially valuable due to its secretive status; and (c) has been kept secret through reasonable measures. However, Article 39.2 has received criticism for not providing specific requirements about what legal protections WTO member states should adopt for compliance, thereby resulting in disparate and often uneven trade secret protections from country-to-country.
The adoption of U.S.-like trade secret protections in foreign countries such as the TPP member states can help to better ensure that both U.S. and treaty member state businesses have necessary trade secret protections, both at home and abroad. Despite the Obama Administration’s call for such harmonization, it remains to be seen whether U.S.-like trade secret protections will be adopted in ongoing and future trade agreement negotiations.