Trade secrets ottawa products
The Access to Information ActR. A-1, the Act gives any Canadian Citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right of access to most records under the control of the Federal Government.
More specifically, the Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the trade secrets ottawa products institution to refuse to disclose the information, or unless the records or part thereof are excluded under section 68 or Paragraph 20 1 a is a mandatory class exemption.
The exemption process under 20 1 a is not completed until this determination is made. The test is very simple to state i. Thus it is safe to assume that all information which falls within the scope of 20 1 a will also fall within the scope of 20 1 b. Accordingly, where a claim is made for the exemption of the same information under both 20 1 a and binvestigators trade secrets ottawa products first determine whether 20 1 b apply before considering the trade secret exemption.
If you are satisfied that 20 1 b applies and that none of 20 25 or 6 apply, there is no need to consider the trade secret exemption and arrive at a preliminary decision whether the information constitutes a trade secret. It is only when the trade secret exemption is claimed alone, or there is a concern that the public interest override exemption applies that the trade trade secrets ottawa products exemption should be considered. Each case will be determined on a case-by-case trade secrets ottawa products.
The following pages will help you to determine what type of information you must obtain during the course of your investigation to determine whether you are dealing with a trade secret. In the case of paragraph 20 1 a only one test must be met in order for the information to qualify for exemption - i. But what is a ' trade secret '? Trade secrets ottawa products the opposite isn't necessarily true.
Some confidential, commercial, scientific or technical information could meet the requirements of 20 1 b but not constitute a trade secret. What attributes distinguish trade secrets from other confidential commercial, scientific or technical information? The claim for exemption under 20 1 a has been made on three occasions and it has been rejected in a fairly summary manner.
In Intercontinental Packers Limited v. Minister of Agriculture14 F. Similarly, the decision in Merck Frosst Canada Inc v. Justice Strayer is much closer, if not indistinguishable4. At that time, the Institute of Law Research Reform made public a new proposal for the protection of trade secrets. It recommended a new legislation be trade secrets ottawa products to give better defined legal protection to trade secrets.
The Institute's proposed definition for trade secrets is often described as a comprehensive summary of the elements necessary for a finding of a trade secret in Canada. The extent of employee knowledge also bears heavily on this question of secrecy. Trade secrets ottawa products there is unrestricted access to secret information by employees, the owner has probably failed to maintain the necessary element of control.
If the access to the information is restricted to designated employees and there are appropriate safeguards in place, there is a greater chance of achieving trade secret status. The following constitutes an illustration of how trade secrets are interpreted in other jurisdictions:. That section reads as follows:. At the present time, only one decision is worth discussing for the purpose of this grid.
While the decision demonstrated that the qualitative nature of a trade secret may not be inadvertently lost, we feel that in such circumstances it would be more difficult to substantiate that it was still a trade secret.
In the United States, exemption 4, 5 U. This exemption applies to " trade secrets and commercial or financial information obtained from a person and privileged or confidential ". FDAF. Circuit's decision in that case represented a distinct departure from what until then had been almost universally accepted by the courts. The narrow definition provided described ' trade secrets ' as " a secret, commercially valuable plan formula, process, or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort ".
This definition requires that there be a ' direct relationship ' between the trade secret and the productive process. The Court of Appeal for the tenth Circuit has expressly adopted the D.
Circuit's narrow definition, finding it " more consistent with the policies behind the FOI than the broad Restatement definition. Merck Frosst Canada Inc v. Has the third party applied for patent, trademark, industrial design or copyright protection with respect to the [method, process, formula, etc.
Are there terms in the license preserving the confidentiality of the information, non-disclosure clauses, etc.? Is there an agreement by those to whom the information is disclosed prohibiting trade secrets ottawa products disclosure?
Has the [method, process, formula, etc. Is the [method, process, formula, etc. See questions above concerning relationship between trade secrets ottawa products, formula, process, etc. Are there others who make similar products or generate similar information in competition with the third party? What competitive or other advantage does the [method, formula, process, etc.
Access and PrivacyCarswell, The interpretations of the Institute and of Mr. Justice Strayer is much narrower than the Treasury Board's interpretation and is preferred by this office. For example, the T. A-1, the Actas extended by the Access to Information Act extension order no. Trade secrets ottawa products 20 1 b is a mandatory class exemption.
The exemption process under 20 1 b is not completed until this determination is made. This test applies to commercially sensitive information regardless of whether it was filed voluntarily or was legally required to be filed.
In Air Atonabee Ltd. Minister of Transport, 27 F. Minister of Indian and Northern Affairs et al. To fall within 20 1 bit must be established that the information meets all of the following criteria - i. For the purpose of this section, it is sufficient that the information ' relate or pertain ' to matters of finance, commerce, science or technical matters, as those terms are ' commonly understood ' see Air Atonabee Ltd.
Minister of Transport27 F. Justice Rothstein explained in Canada Post Corporation v. Minister of Public Works et al. February 10, A, dictionary definitions can be considered in determining the meaning of a provision when the suggested meaning in the dictionary is consistent with the purpose of the Act. These terms are defined as follows in the Concise Oxford Dictionary8th ed. Oxford University Press, It was further noted in Chippewas of Nawash First Nation v.
Upon review, the Court in this case held that Band Council Resolutions clearly did not fall within the definition of financial, commercial, scientific or technical information.
Minister for Industry, Trade and Commerce et al. To prove that it is ' confidential information ' four essential conditions must be met To put those tests trade secrets ottawa products a different way, whether information is trade secrets ottawa products will depend upon its content, its purpose and the circumstances in which it is compiled and communicated.
Even if these criteria were met it cannot be concluded that the information is still confidential. Where the evidence indicates that the information the disclosure of which is being contested has in fact been disclosed or is otherwise available from sources accessible by the public, the information should not be considered as ' confidential '.
To the same extent, in order for the information to be exempted there must be some objective evidence that the information is such i.
What is important to consider is whether any objective facts could prove that the information is confidential. In Timiskaming Indian Band v. The Court held that the records were not confidential, as there was no evidence they were submitted to the government institution in confidence, that the reporting requirement for land transfers did not contain a presumption of confidentiality and trade secrets ottawa products the institution did not treat the information as confidential.
In Occam Marine Technologies Ltd. Canada National Research Council trade secrets ottawa products, F. One of the requirements of this section is that the information be supplied to the government by the third party. Therefore, where the records consists of comments and observations made by public government inspectors based on their review of the records maintained by the third party, such information is not to be considered as provided by the third party.
Of course, such report may be based both on an examination of particular operations or the physical condition of premises and on a written or oral record made available by the third party. If any information from the latter source is incorporated trade secrets ottawa products the report, that part of the text may qualify for protection under the commercial information exemption e. It trade secrets ottawa products be noted that information supplied by trade secrets ottawa products party would also include any information that, trade secrets ottawa products disclosed, would permit an accurate inference to be drawn as trade secrets ottawa products the actual information that was supplied by the trade secrets ottawa products party.
Thus, information generated by an institution could qualify for protection from disclosure if it summarized what must logically have come from the third party. Canada Mortgage and Housing Corp.
To meet the test of being treated consistently, it must be shown that when the information was being supplied to the government, the third trade secrets ottawa products took sufficient steps to ensure the government would treat it confidentially.
While the exemption reads " treated consistently in a confidential manner by the third party ", the Federal Court in Cyanamid Canada v. T, T, T F. October 23,A, A, A, A, A held that it is not sufficient that the applicant consider the information to be confidential, trade secrets ottawa products must also be kept confidential by both parties and must not have been otherwise disclosed or available from sources to which the public has access9.
In other words, the parties must be able to say that, the information was confidential when it was supplied to the institution and has remained confidential from the date of supply to the government up to the time of the decision not to disclose. This may seem to be more than what the words of the Act require but this is how the Court has interpreted the test. While the Court's decision seems to go farther than the actual terminology of the exemption, we seem to be bound by it since the Federal Court of Appeal in Cyanamid Canada v.
Canada Post Corporation v. February 10, A Chippewas of Nawash Trade secrets ottawa products Nation v. Intercontinental Packers Limited v.
The European Commission is close to harmonising EU law regarding the protection of trade secrets having recently obtained preliminary agreement on the draft Trade Secrets Directive.
Trade secrets are highly valuable assets in business and data collated by the Commission suggests that the misappropriation of trade secrets trade secrets ottawa products on the rise across Europe.
The Commission estimates that 20 per cent of EU companies have suffered actual or attempted trade secret misappropriation over the past decade. This increase is attributable to factors such as global competition, outsourcing and use of IT, which will only continue to affect EU business in the coming years.
Despite the importance of trade secrets to EU businesses, EU law trade secrets ottawa products trade secrets has never been harmonised. A Commission-sponsored study published in looked into the legal protection for trade secrets trade secrets ottawa products the EU and found the existing regime to be fragmented and diversified across the Member States. For example, some member states, such as Austria, Italy, Portugal and Sweden, have national legislation that specifically targets trade secret misappropriation.
However, the level of protection afforded to companies varies widely — for example, some of these member states, amongst them Germany, Denmark and Spain, do not have a legal definition of trade secret. Others, including Belgium, France, the Netherlands and the UK, have no specific legislation to deal with trade secret misappropriation and instead rely on other legal channels, such as unfair competition or tort law. The UK, for instance, relies on a combination of contract law and actions for breach of confidence to handle disputes over trade secret misappropriation and has developed a relatively robust and clear common law approach to the misappropriation of trade secrets.
According to the Commission, these different national rules prejudice the proper functioning of the internal market. The uncertainty generated by this uneven and fragmented system means that companies from different member states are likely to be more reticent to collaborate or transfer know-how or confidential information.
The proposed Directive aims to tackle the problems caused by the current system and, in particular, to encourage the exchange of knowledge and cross-border research and development by putting in place common rules to protect trade secrets. Amongst other things, the draft Directive provides definitions of trade secrets and infringing goods, defines what may amount to lawful or unlawful acquisition, use and disclosure of trade secrets and sets out the minimum civil remedies that should be available to businesses who suffer trade secret misappropriation.
The draft acknowledges that a key problem facing owners of misappropriated confidential information is foreign manufacturers using trade secrets obtained unlawfully to create infringing products abroad, which are then imported and sold in the EU, often entering via weaker trade secrets ottawa products points. The draft also provides a number trade secrets ottawa products safeguards to protect those who acquire or disclose trade secrets in order to expose misconduct, wrongdoing or unlawful activity ie whistle-blowers and to ensure that investigative journalism is not trade secrets ottawa products and that companies remain legally obliged to trade secrets ottawa products information that pertains to matters of public interest.
Importantly, the draft states that its provisions should not restrict employee mobility, allowing employees to use information that does not amount to a trade secret alongside their experience and skills honestly acquired at work. A preliminarily agreement on the draft Directive was reached on 15 December It is trade secrets ottawa products awaiting formalisation by the European Parliament and Council, but this is expected within the coming months an indicative plenary sitting date for first reading has been set for 12 April If agreed, member states will have up to two years to make their domestic law compliant with the new provisions.
What will change for the UK? As it is currently drafted, the Directive approaches the law of trade secrets in a broadly similar way to the existing body of UK law. Therefore, if applied in the UK dependent on the UK remaining a member of the EUthe proposed Directive in its current form is unlikely to radically change UK trade secrets ottawa products regarding the treatment of and protection available for trade secrets.
One area to watch is the extent to which the definitions of infringing goods and unlawful use of trade secrets will make it easier for UK companies to take action in respect of goods made using unlawfully obtained trade secrets, in particular, goods made abroad and subsequently imported into the EU. At a general level, the Directive should positively impact UK trade secrets ottawa products in terms of cross-border commercial relations with EU companies.
The Directive should reassure UK businesses that their trade secrets will be afforded the same degree of protection across the rest of the EU. UK businesses may in turn be more willing to engage with companies in member states whose pre-Directive law regarding trade secrets and the protection of confidential commercial information was either unclear or non-existent. EU on the brink of harmonising trade secrets law 11 April The European Commission is close to harmonising EU law regarding the protection of trade secrets having recently obtained preliminary agreement on the draft Trade Secrets Directive.
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