new hope for trade secret protection

After several years of negotiations, in June 2016 an EU Directive was adopted for protection of trade secrets, “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure“, Directive 2016/943 (the “Directive”).

The background to the Directive is that the EU has identified exchange of new knowledge and new results as a lever for new innovation and the creation of intangible assets. The opportunity to keep information confidential is seen as decisive for such exchange and for the continued development of intellectual property rights. The fact that the rules for protection of trade secrets are different in various EU member states is alleged to hamper cross-border research and development as well as the dissemination of innovative knowledge. This is because the opportunities of companies to defend their trade secrets against dishonest attacks are limited. Thus, the purpose of the Directive is for protection of trade secrets to be the same throughout the EU and to improve the conditions for innovative business activities.

Today many EU countries lack specific legal regulations intended to protect trade secrets. Sweden is one of the few countries with an act specifically for trade secrets, namely the Act (1990:409) on the Protection of Trade Secrets (“FHL”). However, this act has its deficiencies and obvious loopholes have been detected over the years, not least by a number of legal cases which have attracted a great deal of attention.

In Sweden there have also been attempts to develop a new act, most recently in 2008. The legislative attempts were unsuccessful due to, among other things, that an EU regulation within the area was expected. Despite the long wait, such a regulation is now in place. Given the Directive, Sweden will also have to update FHL, even though some areas of the Directive conform to that covered by FHL. The protection specified by the Directive is at a minimum level, it is thus possible for member states to impose stricter rules, as long as they conform to the requirements of the Directive.

The member states shall implement the Directive by June 2018 at the latest. In May 2016 the Swedish Government appointed a special investigator with the aim of considering which amendments to the Act are required to adapt Swedish law to the Directive. The assignment shall be presented by 19 May 2017 at the latest

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