Protection of inventions, know-how or information through secrecy

A company’s know-how, manufacturing or business secrets or certain information which it holds may not always be protected by patents or other intellectual property rights. In this case, the only protection available to companies for this information is secrecy.

Similarly, a company may choose to keep its inventions a secret rather than divulge them to the public by patenting them. In fact, if a patent request is filed, competitors are made aware of the manufacturing formula or process. In addition, patents have a limited duration, whereas secrecy lasts as long as the information is not divulged.

The classic example of a well-kept secret is the formula for Coca-Cola. Instead of filing a patent for the invention of the formula, if it is indeed patentable, Coca-Cola Enterprises kept the composition of its famous drink a secret. The patent would have required the company to divulge the formula and would have allowed any competitor to manufacture the product after its patent expired. By keeping the formula a secret, the company has maintained a de facto monopoly over its drink since 1886.

Protection of the secret from third parties

Companies must take steps to maintain secrets (divulge them to a limited number of persons, secrecy of the invention process, etc.).

A company with a secret invention may protect it through confidentiality agreements which it may sign with those who are required to know the secret. If the secret is divulged or is used by these persons, they may be prosecuted for failure to keep their contractual obligations.

The holder of the secret may also bring individual action for unfair competition against a competitor with unfair competitive behaviour. This could be the case for companies which poach or bribe employees of the secret-holder to obtain confidential information, incite their employees to reveal their former employer's secrets or use a competitor’s client lists or other confidential information.

Protection of the secret from employees

Belgian law also provides two types of protection for secrets within employment contracts:

  • The employment contract law forbids workers from divulging any manufacturing or business secrets which they might learn during their professional activity. This ban is imposed on workers during the course of the contract as well as after it is finished. Violating this obligation is considered misconduct and may lead to the immediate dismissal of the worker (Article 17 of the employment contract law);

  • A worker who divulges a secret is also committing a criminal offence which is punishable with imprisonment and a fine (Article 309 of the Penal Code).

Regulation

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