Brexit And Trade Secrets: 6 Key Things To Know

• Published date: 26 November 2020
• Subject Matter: Intellectual Property, Trade Secrets
• Law Firm: Gowling WLG
• Author: Mr Jonathan Ball

On 31 December 2020, the Brexit transition period comes to an end, and significant changes to the law in the UK will take effect.

For trade secrets and the law in relation to confidential information, there are some important soundbites for businesses to be aware of - some of which you may already have heard about, while others may be news outside the UK (even for experienced trade secrets lawyers):

1. English law protecting against the misuse of confidential information, including trade secrets, has evolved in the tradition of the common law, which has long been considered to be compliant with the country's obligations under the TRIPS Agreement with respect to legal protection for "undisclosed information". The tort of breach of confidence protects information which has the "necessary quality of confidence", is communicated in circumstances importing an obligation of confidence, and is used (or threatened to be used) in an unauthorised way to the detriment of the owner (Coco v A. N. Clark [1969] RPC 41, Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109).
   
2. The first English legislation to address protection for confidential information came into force in 2018, in order to implement the first EU legislation in this area (The Trade Secrets Directive). Recent case law from the High Court suggests that the common law principles are unaffected (Trailfinders v TCL [2020] EWHC 591 (IPEC), Shenzhen Senior v Celgard [2020] EWCA Civ 1293).
   
3. The application of settled principles of English law protecting confidential information and trade secrets therefore continues. A recent example is the Shenzhen v Celgard case, in which Court of Appeal confirmed the award of an interim injunction to restrain importation into and sale in the UK by a Chinese manufacturer ('Senior') of separators used in lithium-ion batteries. Celgard alleged that the goods concerned had been developed in China after a former employee of Celgard in the USA, who had had access to valuable trade secrets regarding Celgard's battery separator...