Beiträge in Sammelwerken
Immaterialgüter- und Wettbewerbsrecht
Immaterialgüter- und Wettbewerbsrecht
Enhancing TRIPS: Trade Secrets and Reverse Engineering
Enhancing TRIPS: Trade Secrets and Reverse Engineering in: Hanns Ullrich et al. (
Twenty years after TRIPS, the European Commission has raised an initiative to harmonize trade secret protection throughout the EU. Due to having set minimum requirements, TRIPS has not achieved uniform trade secret protection. Importantly, it remained silent in Article 39 TRIPS on such concepts as reverse engineering. As a result, national laws and/or case-law on this issue diverge not only on both sides of the Atlantic, but also within the EU. Yet, drawing the limits of trade secret protection and the boundaries of reverse engineering is of highest importance for innovation. The Proposal for the Directive which aims at harmonizing trade secret protection in the EU explicitly addresses reverse engineering as a legitimate means to discover information. However, it simultaneously provides for a possibility to restrict it on the basis of a contract. The question thereby arises of the legitimacy of such contractual restrictions and possibly of the limits of a freedom of contract. A further issue to be discussed is whether the Proposal for the Trade Secrets Directive goes beyond TRIPS in a way that it could be considered as an enhanced, “TRIPS-plus” model to be followed not only within the EU, but also outside its borders.