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A Comparative Study on Confidentiality Management as a Requirement for Trade Secrets - Focusing on U.S. and Japanese laws and precedents-

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2020, 8(1), pp.321-344
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : February 11, 2020
  • Accepted : February 22, 2020
  • Published : February 28, 2020

Lee, Kyung-Min 1

1한려대학교

Candidate

ABSTRACT

Operating secrets refer to information such as all methods of production, sales and other operations of a company not generally known outside the company. Because trade secrets have an advantage that is not disclosed unlike patents, companies often keep technical and management information secret. Information considered a trade secret is a product of research and development within a company that is produced by investing a lot of time and effort and provides economic advantages over competitors. The requirements for protection as trade secrets vary from country to country in accordance with legislative policy, but in common, confidential information should be generally unknown (informal) to include technical or managerial information, and business secrets should have economic value inherently (in economic usefulness), and the company should make reasonable efforts to hide information from the public (insecure). All three requirements must be met to be protected as a trade secret. However, when it comes to confidentiality, the question of what level of secrecy the holder of business secrets should manage has been constantly raised, and it is an important issue for the holder to be protected by business secrets even in the actual case of conflict. In the U.S., the Secret Service Act calls for "reasonable measures" in relation to confidentiality, and in actual cases of conflict, corporate efforts for "reasonable measures" are strictly required, and the proof is often difficult to prove, so they are not protected by trade secrets. In the case of Japan, the anti-fraud competition law requires "secret management" in relation to confidentiality and provides a standard for confidentiality management measures in the business confidentiality guidelines. In order for the confidentiality requirements to be met, it is required that the confidential management physician of the business secret holding company be clearly presented to the employee or others by the confidentiality measures, and the employee’s awareness of the secret care doctor is ensured. Although the revised Anti-Competition Act does not reach the level of an entity’s reasonable efforts for objective recognisability and access restrictions required by previous precedents, the management of trade secrets can also be acknowledged to the extent to which the target trade secrets can be perceived as confidential within or outside the entity. However, confidentiality can be considered to be negated when an entity does not specifically distinguish the entity’s general information and operating secrets and does not take any action.

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