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back to article EC trade secrets plans: Infringing kit may be DESTROYED by order

Courts could order companies that infringe rivals' trade secrets to destroy goods developed using that know-how and pay damages under new laws proposed by the European Commission. The Commission has published a draft Directive on trade secrets (26-page/133KB PDF) in a bid to harmonise the legal framework around the unlawful …

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That's it in a nutshell

How insane does the patent situation have to get? This destruction of productive capacity cannot possibly serve thee and me.

What's next? Death sentences?

You should be suspicious that this odious cash grab requires that all major jurisdictions be convinced to sign on. If, for instance, Canada said 'nope', we would see within a few years that abolishing patents is highly beneficial for most of us. In fact, Canada *has* said this with respect to some generic drugs and there is no question at all that it is highly beneficial for Canadians.

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Vic
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Re: That's it in a nutshell

> How insane does the patent situation have to get?

This has nothing to do with patents.

It's about trade secrets that have been unlawfully obtained.

I'm not entirely sure how many companies will be affected in any way...

Vic.

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Anonymous Coward

Re: That's it in a nutshell

Actually, it doesn't have anything to do with patents - more of industrial theft or somebody moving companies and taking designs with them. (Although disclosure of trade secrets through whistleblowing is allowed)

The article states that lawfully acquired designs include those through independent study or reverse engineering of products or objects that have been made available to the public.

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Re: That's it in a nutshell

Uh, there aren't any new trade secrets, with rare exception. Most patents jigger something already in existence. Many patents cover the same idea. In the US, the patent office doesn't have enough well trained staff to deny blatant copies, nor do they care. Corps have abused the patent system from both sides. Many patents don't produce anything, just enough to sue somebody.

Since software is basically an algorithm, it shouldn't be allowed as patents. Many were initially filed as copyrights. On one hand we need patents for companies to produce usable things, on the other some companies make their living form trading and shuffling IP.

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Stop

Re: It's not about patents

It kind of is, in the sense that they're arguing that secrets need better protection because SMB's can't afford patents, or to be clearer, can't afford to protect patents.

Of course, that's all a load of bollocks, nobody gives two shits about SMB's, massive red flag right there.

I would suggest it's really about enabling the wildly lucrative patent trolling business to expand into trade secrets litigation.

This really isn't going to end well at all.

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Why destroy? Surely there are better, practical uses we can put this otherwise working tech to. Give it to a charity or something.

Okay, might not work for everything, but it seems such a waste.

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How? Why?

"The objective of the proposal is to establish a sufficient and comparable level of redress across the Internal Market in case of trade secret misappropriation (while providing sufficient safeguards to prevent abusive behaviour),"

The is bureaucratic gobbledegook . A good test of whether a statement is meaningless is to invert it and if the result is rubbish the original is rubbish.

Clearly someone, somewhere has decided that Something Must Be Done so they developed a scheme.

People, particularly SMEs use trade secrets as a way of sidestepping the bureaucratic and expensive clusterfuck associated with IP law but unluckily for them it's going to become easier for trolls and the vexatious to give them grief (you're using my trade secret, bitch)

The formula for Coca Cola is a trade secret, they haven't patented it because patenting requires publication. Over the years various attempts to copy don't appear to have troubled them.

However, without evidence of other already criminal activity, such as burglary, I'm really curious to understand how this is going to be "light-touch and effective" (don't forget to invert that one)

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Vic
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Joke

Re: How? Why?

> The formula for Coca Cola is a trade secret

The formula for Coca Cola is well-known :-

* Sugar

* Water

* Advertising

Vic.

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Joke

Re: How? Why?

and brown, lots and lots of brown.

[i won't speculate on the source of the colorings]

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Anonymous Coward

Re: How? Why?

Coca cola may be a trade secret but the article states that the framework allows product obtained through "observation, study, disassembly or test of a product or object that has been made available to the public". (e.g. reverse engineering of something that is typically available to the public)

Given that Coca-cola have been selling said product all around the world, they don't get any protection under the changes.

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Happy

Taken steps to keep the secret a secret

How does this go if your company stores the data in the cloud on a server hosted in the US?

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Yes, and this is going to stop China continuing to steal secrets through industrial espionage isn't it.... hmmmm... no I didn't think so. China will just ignore the court order and carry on stealing secrets for their products the way they always have. If an EU country ever steal a Chinese companies secret however, you can bet they will be taken court and told to destroy everything, and given they are based in the EU will have to comply. This creates a disadvantage to companies basing themselves in the EU, why bother when its easier to get away with things if your not here?

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This is precisely what the law is supposed to stop.

At the moment a Chinese company steals an idea it can manufacture and sell it in europe - your only redress is to try and sue the chinese owner. With this law you can seize and destroy the goods.

It also stops jurisdiction shopping where you can steal an idea from one country but base yourself in some new member state with less stringent rules.

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Big Brother

State Protectionism

Personally, I don't see why any company should be allowed to keep secrets, or have any other rights usually reserved for real people. As commercial entities operating in the public domain, it should be incumbent upon them to do so transparently, as a matter of public interest. They're not people - they have no right to privacy, and they're not democratically elected governing bodies - they're not protecting the public good, so their keeping "secrets" is actually in contradiction to the public interest, indeed its sinister.

If these companies have any genuine "inventions" or "creations" that truly deserve any sort of state protectionism, there are already other legal mechanisms to do that, such as copyrights and patents, both of which have a limited scope and duration, which (theoretically) ensures they do not conflict with the public good. This is in stark contrast to "trade secrets", which have no such limitations or legal oversight, and so can be abused for all sorts of nefarious purposes.

And now, with this latest development, those nefarious purposes are not only being offered state protection, but this protectionism is being executed in the most thuggish manner possible.

It's enough to make even Al Capone blush.

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WTF?

Re: State Protectionism

What? Trade secrets are what make of businesses go. Patents are actually a fairly rare case, the vast majority of businesses will never apply for or receive a patent.

For example, we do quite a bit of work with titanium and its alloys. I have several patents on various activities related to working with Ti, processes I developed at fairly significant cost to myself. I felt that the entire industry could benefit from that information and the licensing provides a nice income stream.

At the same time, I have developed processes for working with Ti that give me large competitive advantages for the core business. The money I make from those processes far outweighs any financial gain from patenting and those processes will still be making money long after a patent would have expired. We're the only people that provide those secret services and customers come from all over the globe to take advantage of them. Get your own clients.

Why should I have to give up my secrets? It was my financial investment and my expertise that made those things possible. Why should a competitor get those things free? Let my competitors send their leaders off to school for 11 years and let them spend a few million of their own dollars developing experiment after experiment that ultimately fail before they get it right. Let them comb the planet in search of the high caliber engineers, materials scientists, chemists and precision machinists.

My expertise. My money. My staff. My invention. My advantage. Fuck sharing that. Even for a price, just fuck that, my secrets aren't for sale or for sharing. If you want some secrets go get your own, don't be expecting to get mine.

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Re: State Protectionism

Wow, Henry Reardon raises his head to speak to the unwashed masses.

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Pirate

Re: "My invention"

Well, if it really is an "invention" then surely it's patentable, so it doesn't need to be a secret.

On the other hand, even those things that are patented are always derivative to at least some degree, and therefore cannot justifiably be monopolised (unless you can demonstrate that you've suitably compensated every single contributor to "your" work), so I'm at a loss to recommend any course of action that's both viable and ethical, beyond merely working for a living like everyone else.

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Re: "My invention"

Patent protection expires and gives anyone interested the ability to reproduce your 'thing'. Patenting something can also expose parallel internal processes that your competitor doesn't need to know about.

Some things are good for patenting, but lots of things have more value as secrets. Secrets tend to hold longer term value better and serve the wonderful purpose of acting as a ridiculously expensive barrier to entry. Good industrial secrets can be reverse engineered to a point, but once you cross that point you're basically flailing in the dark and throwing tremendous resources at something that you can't actually verify as an accurate reproduction.

Things that change quickly are good things to patent. You're squeezing as much value as you can out of your 'thing' before the goalposts move and your thing no longer has value. But other things, like I mentioned in my first post, don't change very fast and a patent would greatly reduce the ultimate value of your thing.

Lastly, patents do not provide protection for your ideas. Patents provide a mechanism to pursue alleged infringers. It's expensive, time consuming and rarely worth pursuing. The ginormous settlements you occasionally see in the news are extremely uncommon. If you cover your legal fees and get a licensee out of the deal you're lucky.

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Headmaster

Re: "Patent protection expires"

Good. That's just as it should be. In fact it needs to expire much sooner or, better yet, be completely abolished.

The practical difficulties associated with monopolising something that is, to at least some extent, derivative work, and thus blatantly plagiarised and stolen from other people, is likely to engender about as much sympathy as a bank robber bemoaning the fact that it's difficult to rob banks without a shotgun.

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Re: "Patent protection expires"

Jesus. That's really fucking short sided and (willfully?) ignorant.

A patent is your compensation for adding your knowledge to the overall body of information as opposed to keeping it a secret. The entire system is built around the idea of derivative work. That's what prior art is, a starting point from which you can develop other things. The system encourages you to take parts of previously patented things and recombine them into something new.

Your 'derivative works' argument was laughed out if court over 100 years ago. It was stupid then and it's stupid today.

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Paris Hilton

Not investing because they are busy puking in fear?

They will no longer be dissuaded from investing in new knowledge by the threat of having their trade secrets stolen.

Anyone know of a few concrete cases or is this a "Megan's Law" thing?

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Stop

Seems ok

Looks to me like measures specifically to fight against industrial espionage. Doesn't seem unreasonable. It's not something you can accidentally do. The way I read it , even reverse engineering doesn't seem covered once the item is in the public domain. I'm not really sure its a problem that really needs to be solved but I guess it is.

Hence this has nothing to do with patents. Note that not all patents are bad.

The points of patent is to protect the investment that you've put into the research and development. This is CRITICAL to some industries. The pharmaceutical industry for instance may spend tens to hundreds of millions developing drugs. Part of that development is clinical trials that also costs millions. To recoup their investment and to make a profit , they need to sell the drugs at a cost way above the manufacturing costs. If they didnt, they will have some company in China making the drug at 1 pence a tablet. All the investment will go down the toilet. If you kill patents and other forms of protection it will kill a whole raft of new development, you will kiss goodbye to all commercial drug development for a start.

Unfortunately patents have also become trivial and no real reflection of either ingenuity or real effort development / research. That's the crap that needs to be sorted.

Too many of you have been drinking Richard Stallman's coolaid. Time you get a grip on reality.

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Re: Seems ok

>you will kiss goodbye to all commercial drug development for a start.

Wow somebody has bought into big Pharma's propaganda. You do know many many "commercial" drugs are developed at those liberal factory public universities right? Big pharma spends more on advertising than they do research and development. Big pharma big value add is distribution, advertising and bribing the right people to get drugs approved. Much of their pipeline is buying up small startups that look promising (many of which have roots out of the public sector). Yes I understand patents are important for pharma (if for no other reason for the universities to be able to get some of that money based on their research). Software patents are still immoral. Software is nothing but applied math.

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Re: Seems ok

I've always loved that line about companies needing stricter IP controls to recover R&D spend. Any time you hear that bandied about it's either coming from a lobbyist or from some dipshit who has no idea what they're talking about.

Research and development is always an NRE. You spend the money and it's gone and you have no intention of ever recovering it. R&D costs are their own thing and aren't figured into any non-R&D segment of the business. If the costs of R&D were figured into product pricing or core operations it would cost you about 1.5 unborn children every time you upgrade your mobile phone.

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Devil

Obvoius question

... who paid for that one?

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When did patents protect SMEs?

Patents protect patent portfolio companies from small innovators.

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Anonymous Coward

Since everything is reverse-engineerable, this seems to offer very little protection against anything. Unless you are actually caught holding copies of the original blueprints (which is clearly theft) or your product has identical firmware (already covered by copyright), you can simply claim that you reverse-engineered the product.

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yep

Yeah does sound like a solution searching for a problem or more likely lawyers and bureaucrats searching for justifying their jobs.

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Anonymous Coward

(Anon in case my personal opinions conflict with my employer/customers)

1) IANAL, but I understood that historically/to-date anything that isn't patented and isn't a trademark (or falls under copyright/passing-off etc) was up for grabs (i.e. can be used legally, though not exclusively, by anyone else). Trade secrets usually involve a method to make something ... which wouldn't be secret if it was obvious from the finished good. So this new law would turn the existing law on its head, and should not be allowed to creep in quietly through a legal back door

2) How can a court enforce a "trade secret"? If the court knows the secret in order to evaluate its infringement, then it's not a secret

3) If it's a well-kept secret, then a third party could independently stumble across/develop it themselves in all innocence. Then what? You punish the smaller company? The newer one? Where's the justice?

4) Cue all sorts of spurious claims (see Patent Trolls), and extortion.

5) Whose idea was this? It seems it's only in the interest of the lawyers (and trade-secret trolls-to-be), and no-one else.

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Silver badge

At the moment it is illegal to steal a trade secret - but once a secret is stolen and becomes available it is free for anyone to use. So it was a simple matter of not getting caught. You pay somebody to steal/leak the idea and leave the results on some fileshare site or drop the folder outside your factory gates and you happen to find it - you can use it freely.

Now you have to show that you reverse engineered it, it became widely available or you discovered it independently. There is lots of case law for these cases where a patent idea was leaked before filing.

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My guess...

...is the patent trolls were getting too much on fighting their current stupid endevours so wanted to create a "new market".

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WTF?

Scary

This runs with the same problems as wi?th patents: what is secret from or obvious to a practitioner of the art when a practitioner isn't involved in the determination until it goes to court. And THEN it's up to a judge or a jury who are't practitioners that make the decision. Ouch! We've seen enough of this crap on my side of the pond.

I spent much of my career applying what works in one engineering discipline to what others thought totally unrelated disciplines. Electronics to epidemiology, just to give an example. To me, it's all math and logic. Everything. So doing what I do, is that obvious/discoverable? To me it is and I readily do it to the work of others. Non-obvious/discoverable thus falling into the domain of trade secrets?

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Re: Scary

A big problem at the USPTO is that 85%+ of the staff are generic lawyers. There used to be a strong industry practitioner element within the agency, but they've faded away over the years. The worst part is that those lawyers are mostly the shitty ones who couldn't find private sector work after the bar. All that wrapped together is a disaster.

But the judge/jury part has always been the case. The USPTO is not, nor has it ever been, the supreme arbiter of uniqueness. Being granted a patent absolutely does not guarantee your thing is original/unique. A patent means the agent reviewed their pre approved information sources and didn't find anything overly similar. There are no warranties, express or implied, when you receive a patent. The judge has always had the final say.

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Anonymous Coward

Can no-one see the issues here

The issue is that companies can patent troll and destroy their competition.

This is called a "Monopoly" and companies like these.

Also it might stop a few fake memory cards and handbags but unless the RM screen *every* *single* parcel and packet for infringing goods then things will continue exactly as they are now.

Also what if someone say releases the plans for a cheap clean energy source?

Under this law or something like it the Govt or agents of them can come into someone's

house and take it away for destruction, and under PATRIOT etc they can't even talk about it to the press.

Talk about maintaining the oilgliarchy, just to make sure we drown ourselves due to global warming because the less polluting cheap energy is kept under lock and key.

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Reality Check

"Research and development is always an NRE. You spend the money and it's gone and you have no intention of ever recovering it. "

You completely misunderstanding how R&D gets funded?. Its not a case of "not having intention of ever recovering it" , its a case that commercial R&D gets funded with the intent that the investment gets you some commercial value / advantage, whether that is a new product or a new way of doing things. If you didnt think you will get something back from your R&D , you WOULDNT DO R&D.

Companies do R&D for commercial gain. The only other R&D that takes place is in Universities or governmental institutions. Even University R&D is often funded by corporations.

I've been involved in creating two products. That included raising the funds for them to be created. For the first 2 years, all my team was overhead. No revenue and totally funded by the investors. Eventually we had a product to take to market. This created jobs and added what I believe are great products to the market.

These are software products and as such are protected by Copyright. It says that what you create belongs to you. Without Copyright, our Intellectual Property would not be protected and the R&D costs would have gone to waste. No-one would ever fund a project again unless the R&D is protected.

The Pharm industry can't rely on the same type of protection as software and consequently need patents.

As I said before , patents arent all bad. Look at Dyson. They spend a lot of R&D effort in coming up with innovative ways of doing different things. They protect their inventions with patents because otherwise there will be a Chinese copy of their products within months of them releasing something new.

This is especially important for smaller firms. Dyson could probably now survive just on their brand name. A small startup couldnt. Remember its Patents that made Dyson possible in the first place.

The problem however, and I've fallen foul of this, is that patents with little or no innovation are being issued. So you have to work around the bleeding obvious.

The patent system that was specifically designed to protect the small inventor is now totally working against small entities. As another poster said , the mega-corps hold vast patent portfolios. These are used both defensively as well as offensively. A small company cant afford to even fight a patent dispute against a mega-corp.

I personally would get rid of Software Patents both Utility and Design Patents. But Patent / Copyright / Trademarks all have their place.

Downvote to your hearts content, but many of you seriously need a reality check.

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