LEGAL PROTECTION OF TRADE SECRETS
Introduction
There are several terms used to refer to the term trade secret, including undisclosed
information, or unknown information.
When viewed through the perspective of property law (civil law subsystem), trade
secrets cannot be categorized as intellectual property rights, because there is no element of
property rights that can be given protection. It cannot be known which element of property
will be protect their rights in the granting of trade secret rights, everything is kept secret.
Indeed, the intangible property right is hidden in the protection of the trade secret, but it is
never known to the public, what is the form that is kept secret. If traced the form of the secret
can actually be protected in the form of a patent, or in the form of copyright, but if the right is
protected under copyright or patent protection, then it will no longer be secret. Consequently,
the right will can be imitated by others, or after the right expires it will become a public
domein, hence the right becomes free to be owned by anyone.
To protect this possibility, owners of technology or business information that has
economic value are more likely to register their rights as trade secrets rather than registering
them as patents or under copyright protection. The aim is to ensure that the right can be used
for a longer period of time and thus the owner can enjoy the benefits longer and at the same
time protect his product from imitation.
In countries that follow the Anglo-Saxon legal system, information is considered as
property rights and its violation is classified as a special kind of tort called the action for
breach of confidence. Whereas in countries that follow the Civil Law system, such violations
are only considered as onrechtsmatigedaad, common law tort.
The definition of a trade secret is normatively formulated as information that is not known
by the public in the field of technology and/or business, has economic value because it is
useful in business activities, and is kept confidential by the owner of the trade secret.
If the elements contained in the definition above are examined, the characteristics of trade
secret law can be drawn, namely:
Is information that is not publicly known
Information The includes technology or business fields
Has economic value that is useful in business activities
Kept confidential by its owner
Information is not known to the public, meaning that the information is exclusive, only
the holder of the information can know the secret. Secrets containing information in the field
of technology or those related to the business world.
Technological information, of course, is obtained through scientific studies that require
intellectual skills, costs and may take a long time. Because information is useful for the
business world, it must have economic value, therefore its confidentiality needs to be
maintained by the owner.
The beverage product "coca cola" is one of the classic examples of trade secrets. The
information and technology for making the drink is said to be known by only three people in
the world.2
Why should it be kept secret? What is the rationale for keeping the information
confidential?
The philosophical basis for the protection of confidential information is that it is obtained
by the owner with great effort and requires special skills, spending a lot of time and money,
just like other IPR protection, although this is not always the case. It may also be that the
information was obtained in a very simple way, but it is still a right that must be respected.
The rationale for the protection of confidential information under the TRIPs agreement is
the same as the rationale for the protection of other forms of IPR, such as copyrights, patents,
designs or brands. That is to ensure that parties who make investments to develop concepts,
ideas and information of commercial value can benefit from that investment by obtaining the
exclusive right to use the information use the concept or information, as well as to prevent
others from using it or disclosing it without authorization.
Legal protection of confidential information also encourages business and commercial
development by ensuring that entrepreneurs develop knowledge, concepts, and information
rather than simply stealing or copying the property of others.
Discussion
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
The Difference Between Trade Secrets and Intellectual Property Rights (HAKI)
There are 3 main differences between trade secrets and other forms of IPR such as
copyrights, patents, and brands. The three differences can be described as follows:
Other forms of IPR are not confidential. Other forms of IPR receive protection because they
are a type of property owned by others. Indeed, unless information about an invention is
disclosed, patent protection cannot be obtained from the state.3 If copyrighted works or a
brand are not in common use, they have no commercial value. Trade secrets receive
protection because their confidential nature makes the information valuable. Trade secrets
consist of information that only has commercial value if its secrecy is not lost.
Trade secrets are protected even if they do not contain creativity or new ideas. What matters is
that the trade secret is not generally known. For example, an effective work system may not
be very creative, but its effectiveness and secrecy make it commercially valuable.
Other forms of IPR are always in a certain form that can be written, drawn or recorded exactly
in accordance with the registration requirements set by the government agency. Secrets are
not necessarily written down. What is important is not the exact form of writing or recording
information, but the use of the concept, idea or information itself that can be given to others
orally. This is different from patents or trademarks.
Although there are differences between secrets and other forms of IPR, there is still an
overlapping relationship. This overlapping relationship is particularly clear in the case of
patents. If a company has an invention, they can choose between keeping the underlying
principle of the invention secret or patenting the invention. If the company chooses to keep
the invention secret, the information gets legal protection as long as the secrecy is not lost. If
the company chooses to patent its invention, the confidentiality is lost, but the company gains
patent protection for a limited period of time. Once the patent term expires, the protection for
the invention is also lost. However, while the holder of a patent is guaranteed protection for a
limited period of time, the protection of trade secret law also carries the risk that the right will
be lost as the confidentiality of the information is lost.
However, for inventions that are easy to disassemble or analyze and reproduce, patent
protection is a safer type of protection, despite the limited term of protection. Of course, this
does not matter when the invention step can be carried out continuously. When the right
expires, a new patent can be applied for.
The subject of the right to a trade secret is the owner of the secret itself. The owner of the
trade secret can use and utilize the trade secret as well as prevent others from using it.
However, as with other types of intellectual property rights, the owner may also license others
to use the trade secret for a certain period of time, through a license agreement. The license
agreement creates an obligation for the licensee to maintain its secrecy.
Essential Elements of Trade Secret Law
In most common law countries including the UK, Canada and Australia, the law on trade
secret infringement arises as a result of court decisions and is not found in a statute like
United States current law.
However, in most countries, the basic elements of trade secret law are the same. There
are six basic principles that can be found, namely:
To obtain legal protection, information must be confidential.
The defendant must be satisfied that the plaintiff is maintaining the confidentiality of the
information.
There must be an unauthorized use of confidential information by the plaintiff.
Unauthorized use of the information must result in harm to the plaintiff.
Disclosure of confidential information may be justified in the public interest under certain
circumstances.
Various legal remedies can be applied through the courts.
Application of Legal Principles
If an inventor chooses to disclose information or a concept so that the general public or
other parties can easily obtain information relating to the invention by publishing an article or
advertisement that makes the information or concept public, the confidentiality is lost.
Disclosure of information that is deemed necessary to be made public causes the
confidentiality of that information to be lost and cannot be protected as a trade secret. For
example, under Australian law, a public company is required to disclose certain information
so that market participants can be properly informed of its activities. The confidentiality of
that information is deemed to be lost when it is disclosed. However, if the document must be
submitted to the court for limited purposes, the information in the document is still considered
confidential, as the disclosure is limited and not to the general public.
The role of expert evidence may be particularly important to establish that information or
an idea or concept is confidential. Despite written evidence showing that the owner of the
information considers it confidential, it may happen that the concept or information has been
independently developed by others or that it is not original or confidential at all. In such cases,
expert evidence may be required to prove that the information or concept is new or original in
the industry.
In order for a claim for breach of confidentiality to succeed, the trade secret owner must
prove the recipient of the trade secret had a duty to maintain the confidential nature of the
information because it was provided in confidence. The circumstances in which the
information was obtained will determine whether there is a duty of confidentiality. It is
generally held that there is a duty of confidentiality if it is reasonable for a person in the same
position as the recipient of the information to recognize that the information was given to him
in confidence.
There are three circumstances that often occur:
The inventor provides information or ideas to another party on the condition that the other
party is obliged to maintain confidentiality. It is easier to prove the information was provided
in confidence if precautions were taken. For example, the information may have been
provided in a document marked confidential. Instead, there is an agreement to keep it
confidential. For example, Franchise agreements, work practices and management manuals
are some of the commercially valuable information sold to franchisees. In this regard,
franchise agreements always contain conditions to prevent the recipient from disclosing
certain types of information. When an employee starts work at a place where he or she will be
using confidential information developed by the employer, there is usually a condition in the
employment contract requiring the employee not to disclose the information provided by the
employer during and after the employment period.
The discoverer of the information gives the information to another party without explicitly
mentioning that the information is confidential. For example, a company conducts market
research, then gives the results to an advertising agency so that the agency can create an
advertising campaign for the company. A confidentiality agreement is not signed. The
advertising agency then used the research to create an advertising campaign for another
company. It is likely that there was a duty of confidentiality because the information was
provided in the context of a commercial relationship, so the advertising agency should have
been aware that market research is usually confidential. The nature of the information, the
commercial knowledge of both parties and the context of the commercial relationship in
which the information is provided are sufficient to establish a duty of confidentiality. Perhaps
a 'context' based method to determine whether there is a duty of confidentiality which it has,
cannot be applied in United States.
The inventor of the information does not give it to the other party, but the other party obtains
it without the authorization of the creator. It can be concluded that the acquisition of
information by improper means, the recipient of the information realizes that the information
is confidential, so the recipient has an obligation to maintain its confidentiality.
Circumstances where information is provided to the recipient in the form of a document
marked confidential or the recipient is verbally informed that the information is confidential,
are evidence of an obligation to maintain confidentiality.
Where there is no written or oral evidence proving the information was given on
condition of confidentiality, the evidence must show that the circumstances in which the
information was given resulted in a duty of confidentiality. For example, if the information
was obtained at a work meeting where only a small number of company executives were
present and the door to the room was closed, it is more likely that there was a duty of
confidentiality than if it is proven that the information was revealed at a lunch with many
executives from various departments within the companies concerned.
Usually expert witnesses do not play a role in proving the existence of a duty of
confidentiality. While the expert witness deals with the confidential nature of the information
whether there is a duty of confidentiality depends on the relationship between the creator and
the recipient of the information as well as the circumstances and context in which the
information is disclosed between the two. This is not a matter that expert witnesses can easily
prove, but only by oral or written evidence.
Unauthorized Use of Confidential Information
The creator of the information will need to show that the recipient is using the concept or
information without the authorization of the creator. There are two forms of unauthorized use:
Where the creator of the information does not give permission to the user at all.
Where the creator of the information allows the recipient to use the information for a
specific purpose, but the recipient has already used the information for another purpose
within the scope of the permission granted.
Evidence is usually required to prove the precise manner in which confidential information
has been misused. Once it is proven that the information is confidential and that it was
provided or obtained by the defendant, the use of the information is difficult to prove directly,
but easy to see from the defendant's actions. For example, it may be difficult to prove directly
that the defendant used the plaintiff's customer list, but it can be seen from evidence that the
defendant has marketed its products only to customers from that list when it had not
previously done so.
Expert witnesses can be important in proving unauthorized use of information. For
example, if it is alleged that a former employee has used a paint mixing method owned by a
paint company, an industrial chemist can testify that the chemical content or mix percentage
of the former employee's paint is exactly the same as that of the paint company. The expert
witness can also prove that it is highly unlikely or impossible that the defendant could have
developed the concept of the paint mix or the same information without the aid of the
information provided or obtained from the plaintiff.
Losses Suffered by the Plaintiff
The plaintiff usually has to prove that the defendant's use or disclosure of confidential
information has caused or is likely to cause loss or prejudice. Usually this will be commercial
or financial loss. However, in practice, once the other elements of breach of confidentiality
have been proven, commercial or financial loss is often obvious. If a company has invested in
developing information, that information is usually commercially valuable because it
improves the company's competitive position in the market relative to its competition. It is
clear that commercial advantage will be lost if other companies misuse the information or
have access to it.
Therefore, the issue of damages is rarely disputed where the other elements of breach of
confidentiality have been proven. Proof of damages is usually part of the evidence that the
court considers in deciding on the appropriate remedy to apply as damages to the plaintiff for
misuse of confidential information. In this context, what must be decided is not whether loss
was suffered, but rather the amount of loss in monetary terms. This issue is discussed further
below.
Across jurisdictions, there are some circumstances where disclosure of trade secrets is
permitted. Circumstances where the disclosure of information is in the public interest, and that
the public interest is deemed to outweigh the private interest of the discloser plaintiff in order
to maintain the confidential nature of the information or concept. This exception usually
occurs when the trade secret has been published or disclosed for the public to examine rather
than when the information is used by market competitors for their own benefit.
Other circumstances where the public interest may permit the disclosure of confidential
information are:
Information related to violations of national security;
Information that relates to or can prove criminal acts;
Information that shows a person or company has violated the law.
Legal Steps for Trade Secret Infringement
In common law countries such as Australia, the United Kingdom, Canada, the United
States and Singapore, there are several legal measures that are important to look at, in matters
relating to trade secret infringement.
Interim and Permanent Injunctions Often legal steps
This becomes important where there is a breach of confidentiality in relation to commercially
valuable trade secrets. If one company uses another company's trade secrets to produce a
product that is sold in the market and competes with the original product, the creator of the
concept or information may be losing thousands of dollars every day to the competing
product. In this case, it is important for the creator of the information or concept to obtain
injunctive relief, or an injunction that prevents the other company from continuing to use the
information.
In exigent circumstances where the plaintiff can establish that the commercial loss
suffered is substantial and will increase unless the use of the information is stopped, the court
may order the defendant to stop using the trade secret until the final judgment. Interlocutory
injunctions are usually effective upon approval of the judge until the final judgment of the
court. If the plaintiff wins the case, then the temporary injunction will become permanent and
the defendant will be prohibited from using the confidential information in the future.
Compensation
The court may decide that the defendant who misappropriated the plaintiff's confidential
information must compensate the plaintiff for the loss it suffered. It is often very difficult to
accurately quantify the commercial losses suffered by the plaintiff as a result of the misuse of
information. The calculation of the appropriate amount of damages will often involve the
following evidence: The amount of money the plaintiff spent in producing the information.
The amount of money the plaintiff could demand from the defendant if the plaintiff
licensed the use of the information to the defendant for the same purpose as the defendant's
action. This may require expert witness testimony from an accountant or economic consultant
familiar with the target market to explain the price that could normally be demanded for the
use of the information.
The profit that the plaintiff did not earn as a result of the defendant's actions is difficult to
determine with certainty. However, if the creator of the information or concept seeks to use
the information or concept to reach a valuable contract with another party, and the defendant
misuses the information or concept secrets to achieve the same contract, it is clear that the
information creator suffers a loss equal to the value of the contract. In this context, the
possible loss is easy to calculate.
A license is a permission granted by a trade secret right holder to another party through
an agreement based on the granting of rights (not transfer of rights) to enjoy protection for a
certain period of time and under certain conditions.
Trade Secrets in the Perspective of United States Law
Overview
The scope of trade secret protection includes production. Management methods, sales
methods, or other information in the field of technology and/or business that has economic
value and is not known by the general public.
Trade secrets receive protection if the information is confidential, has economic value, and
is kept confidential through appropriate efforts.
Information is considered confidential if the information is only known to certain people or
is not generally known by the public.
Information is considered to have economic value if the confidentiality of the information
can be used to carry out commercial activities or businesses or can increase economic
benefits.
Information is deemed to be kept confidential if the owner or parties in possession of it
have taken reasonable and appropriate steps.
The owner of a trade secret has the right to:
use its own trade secrets;
granting licenses to or prohibiting others from using trade secrets or disclose the trade secret
to a third party for commercial purposes.
Trade secret rights can be transferred or assigned by:
inheritance
grant
legacy
written agreement; or
other causes justified by laws and regulations.
The transfer of trade secret rights is accompanied by a document on the transfer of rights.
All forms of transfer of trade secret rights as referred to are subject to fees. Transfer of trade
secret rights that are not registered with the Directorate General has no legal effect on third
parties.
The transfer of trade secret rights is announced in the Official Gazette of Trade Secrets,
as an application of publicity.
License
The holder of trade secret rights has the right to grant a license to other parties based on a
license agreement to carry out legal acts such as:
use its own trade secrets.
grant a license to or prohibit another party from using the trade secret or disclosing the trade
secret to a third party for commercial purposes.
The holder of a trade secret right shall have the right to grant a license to another party
under a license agreement to perform the acts referred to in Article 4, unless otherwise agreed.
Without prejudice to the provision that the holder of a trade secret right may continue to
exercise itself or grant a license to a third party to carry out the acts as referred to above.
License agreements must be registered with the Directorate General for a fee. Trade
secret license agreements that are not registered with the Directorate General have no legal
effect on third parties.
The license agreement is also announced in the trade secret news. License agreements are
prohibited from containing provisions that may cause adverse effects on the United States
economy or contain provisions that result in unfair business competition as stipulated in the
applicable laws and regulations. In such cases, the Directorate General shall refuse to record
the license agreement.
Trade Secret Violation
Trade secret infringement also occurs when a person intentionally discloses a trade secret,
reneges on an agreement or reneges on a written or unwritten obligation to maintain the trade
secret in question.
A person is deemed to have infringed another party's trade secret if he obtains or controls
the secret. The trade is conducted in a manner that is contrary to the prevailing laws and
regulations.
The act referred to is not considered a breach of confidentiality if:
the act of disclosure of the trade secret or the use of the trade secret is based on the interests of
defense, security, public health or safety;
the act of re-engineering a product resulting from the use of a trade secret belonging to
another person which is carried out solely for the purpose of further development of the
product concerned.
Criminal Charges
The crime of violation of the right to trade secrets is a complaint offense, so it is not an
ordinary offense. Investigation can only be carried out if there is a complaint from the rightful
party, namely the right holder or the recipient of the right.
There is a lot of debate among legal experts about the placement of offenses against the
right to trade secrets (including other intellectual property rights, except copyright), among
others, there is an opinion that says because the right to trade secrets is a private right of a
person. So if there is a violation of the right then only the owner of the right is harmed, so it
does not harm the public interest. Whereas there is no difference between someone who
commits theft of goods owned by others, it is in the United States Criminal Code placed as an
ordinary offense.
The placement of a complaint offense against crimes whose object is intellectual property
rights including the right to trade secrets is a mistake because it is possible that the right
holder does not know that his rights have been violated because The event of infringement
may take place at a place far away from his residence. Of course, in this case the owner of the
right is constantly being harmed but he does not know it. If the crime falls under the offense
of complaint then of course the perpetrator of the crime cannot be punished as long as the
person concerned does not make a complaint.
Moreover, the creativity of creators, inventors or designers10 will be hampered due to the
lax protection of the rights granted to them. Of course, in the end, this situation will affect the
growth of the economy, technology, industry and science as well as the decline of human
civilization and is included in the category of harming the interests of the wider community.
In Law No. 30 Year 2000 the criminal penalties for these crimes are formulated as
follows:
Any person who intentionally and without right uses the trade secrets of another party or
commits an act as referred to in Article 13 or Article 14 shall be punished with imprisonment
of not more than 2 years and/or a fine of not more than Rp 300,000,000.00.
The criminal offense as referred to in paragraph (1) is a complaint offense.
As for the investigator of the criminal offense, in addition to the Investigating Officer of
the United States National Police, the Investigating Officer of Civil Servants within the
department whose scope of duties and responsibilities include Intellectual Property Rights
may also be given special authority as an investigator as referred to in Law Number 31 Year
2000 on Criminal Procedure Law to investigate criminal offenses in the field of Industrial
Design.12
Investigators as referred to above are authorized:
to examine the truth of complaints or information regarding criminal offenses in the field of
trade secrets;
conduct an examination of the party who commits a criminal offense in the field of trade
secrets;
request information and evidence from the parties in connection with the event of a criminal
offense in the field of trade secrets;
to conduct examination on disclosure, record and other documents related to criminal offense
in the field of trade secret;
conducting an examination at a certain place suspected of containing evidence of
bookkeeping, recording and other documents;
confiscate materials and/or goods resulting from violations that can be used as evidence in the
case of criminal acts in the field of trade secrets; and/or
request expert assistance in the context of carrying out the task of investigating criminal acts
in the field of trade secrets.
Civil Servant Investigators in their duties notify the commencement of investigations and
report the results of their investigations to the Investigators of the Political Officials of the
Republic of United States.
In the event that the investigation has been completed, the Civil Servant Investigator
submits the results of the investigation to the Public Prosecutor through the Investigator of the
United States National Police with due regard to the provisions of Article 107 of the Criminal
Procedure Law.
Conclusions
Laws are basically rules that are deliberately created by society in order to achieve an orderly,
safe, peaceful and safe life peace. The development of Law in United States is characterized by
an increase in the movement of Legal Protection of Intellectual Property Rights (HAKI),
including copyright, patent rights, rights to trademarks and trade secrets. Trade Secrets Law
No. 30 of 2000 provides the scope of protection of trade secrets are production methods,
processing methods, sales methods, or other information in the field of technology and / or
business that has economic value, and is not known by the general public. With the element of
confidentiality in trade secrets, trade secrets do not have a time limit for protection, the most
important thing is that as long as the owner of the trade secret continues to make efforts to
maintain the confidentiality of the information, this information is still under trade secret
protection.
Information in trade secrets is categorized into information in the field of technology and
information in the field of business. As for what is included in technological information, are:
Information about research and development of a technology;
information on production/process;
information on quality control.
While what what is meant by in business information, are:
information related to the sales and marketing of a product
information related to subscriptions
information on finance
information on administration
The owner of a trade secret can transfer his rights to another party through the methods set
forth in the law, namely through inheritance, grants, wills, written agreements, and other
causes that are not covered by the law justified by law. In the explanation of the trade secret
law that distinguishes between a written agreement and a license agreement, the license is
only granted for a certain period of time with limited rights for the licensee. The rights of the
licensee are limited, the owner of a trade secret who grants a license to another party will not
immediately disclose all the information he owns, usually the owner sends or assists a /
several experts. This is the main difference between a written agreement and a license
agreement. As for what a written agreement is, one example is an employment agreement
where this agreement gives the party with whom the owner makes an agreement the right to
have full access to confidential information. The disclosure of trade secrets through the above
is not said to be an act that reduces the confidentiality of the information.
