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Public FTAA -
COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
PROTECTION OF “UNDISCLOSED INFORMATION” In general, secret information and knowledge that generates competitive advantages for those companies that have it is automatically protected, with no procedural formalities, under the legal concept of undisclosed information, provided it fulfills certain fundamental conditions set forth in Dominican Law 20-00 on Industrial Property. This type of confidential information is protected as undisclosed information when it does not fully meet the criteria to be protected by an invention patent, model, etc. Should undisclosed information not sufficiently meet the criteria for being protected as patent or model, the legislator grants it sui generis legal protection (Article 178 of the aforementioned Law 20-00) in establishing that: “Any undisclosed information within the lawful control of a natural or juridical person that may be used in any production, industrial, or commercial activity and may be transmitted to a third party shall be considered as an industrial secret [ undisclosed information].” (brackets and contents ours) “An industrial secret [undisclosed information] shall be considered as such for the purposes of its protection when the information in question: a) as a whole or in the precise configuration and assembly of its components, is not among, or readily accessible to, persons that normally handle said information; and b) has been subjected to reasonable measures taken by the legitimate possessor thereof to preserve its secrecy.” (brackets and contents ours) As can be observed, the undisclosed information is subject to being considered as such as long as it remains secret; otherwise, it would not comply with the aforementioned criteria. Its protection is conditional upon it remaining secret. The period during which it remains secret shall be equivalent to its legal duration and subsequent protection. Therefore, seeking to grant protection for a given period of time (five years) to undisclosed information undermines its legal content and exceeds the boundaries established under TRIPS, namely the provisions in the mid-section of Article 39, Section 7: Natural and juridical persons shall have the possibility of preventing information lawfully within their control from being disclosed to third parties, i.e. acquired or used by third parties, without their consent in a manner contrary to honest commercial practices, to the extent that such information: is secret in the sense that it is not, as a whole or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons that normally handle said information; and has commercial value by virtue of being secret; and has been subject to reasonable measures, under the prevailing circumstances, by the person lawfully in control of the information to keep it secret. Punishment for actions violating the principle of undisclosed information, such as unauthorized dissemination or appropriation through spying, is applied by the punitive regime established for those cases involving unfair competition (Article 39.1 of TRIPS and Article 179 of the aforementioned Law 20-00). In this regard, Argentine jurist CARLOS CORREA, on page 170 of his book Acuerdos Trips notes the following: “Two general considerations are relevant to this point. First of all, under the agreement [TRIPS], “undisclosed information” is subject to the discipline of unfair competition, which is governed by Article 10 bis of the Paris Convention. With this approach, the agreement [TRIPS] clearly avoids having “undisclosed information” treated as “property", as the US suggests in some of its presentations in the framework of the negotiations." (brackets and contents ours) Mr. Correa further states that although undisclosed information falls under the realm of intellectual property, it does not imply the existence of ownership rights or of exclusive rights, such as those conferred by marks and patents; rather, it protects marks and patents from unfair trade practices. Correa adds that TRIPS does not require the material, physical, or tangible fixation of undisclosed information for the latter to be protected, as is the case for patents, models, and distinctive signs. In any case, it is important to note that information on evidence that is deposited as part of the process to request sanitary registrations is based on information related to experiences that are the result of corporate and industrial technique. This experience does not fulfill the conditions required for protection as patents and models and if one could truly claim this type of protection, one can be certain that the owner would do so. Furthermore, TRIPS does not prohibit authorities from using the information submitted by a party requesting sanitary registration for a product from evaluating other requests made by other parties. We wish to emphasize that the concept of undisclosed information or trade secret (as it is also referred to) was established precisely for those instances in which the requirements traditionally set for other types of industrial property are not met. Therefore, to seek protection for deposited information for a period of five years in order to begin the process of obtaining sanitary registration-as pharmaceutical multinationals attempt to do, through their governments-undermines the legal content of this concept and goes beyond the parameters set forth in the Paris Convention, the TRIPS Agreement, and Law 20-00 on Industrial Property of the Dominican Republic. |
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