Trade Secrets

Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed.

In general, to qualify as a trade secret, the information must be:

• Commercially valuable or have potential commercial value because it is secret, 
• Be known only to a limited group of persons (i.e., it is not generally known among, or readily accessible, to circles that normally deal with the kind of information in question). Absolute secrecy is not required. 
• Be subject to reasonable steps taken by the rightful holder of the information to keep it secret. 

Any confidential business information which provides an enterprise a competitive edge and is unknown to others may be protected as a trade secret. Trade secrets encompass both technical and commercial information such as:

• Information concerning manufacturing processes, 
• Pharmaceutical test data, 
• Designs and drawings of computer programs, 
• Distribution methods, 
• List of suppliers and clients, and
• Advertising strategies.

A trade secret may be also made up of a combination of elements, each of which by itself is in the public domain, but where the combination, which is kept secret, provides a competitive advantage. Other examples of information that may be protected by trade secrets include financial information, formulas and recipes and source codes.

There are no legal provisions that specifically protect trade secrets in Antigua and Barbuda. The responsibility falls on the owner of the trade secret to protect it by keeping it confidential. This may be done through contract law, marking confidential documents, placing physical and electronic restrictions to access trade secret information, introducing a systematic monitoring system, and raising awareness of employees.

Since protection depends on the trade secret remaining confidential, the length of protection can last as long as possible if persons are trustworthy and respect contractual obligations.

Antigua and Barbuda provides for remedies in civil law, in particular, tort law and contractual law for the breach of a trade secret. A trade secret owner can be compensated for the economic injury suffered in the trade secret’s disclosure.

Some advantages of trade secrets include:

• Not limited in time. Trade secrets may continue indefinitely as long as the secret is not revealed to the public.
• No registration costs involved (though keeping the information confidential may entail high costs in certain cases);
• Immediate effect; and
• Does not require compliance with formalities or public disclosure.

Some disadvantages of trade secrets include:

• A trade secret may be patented by someone else who developed the relevant information by legitimate means.
• Once the secret is made public, anyone may have access to it and use it at will. The more people know about the trade secret, the more difficult it will be to keep it secret. 
• A trade secret is more difficult to enforce than a patent. Because it is quite difficult to prove the violation of trade secrets, the level of protection granted is considered weak, when compared to that of patents.
• Due to their secret nature, selling or licensing trade secrets is more difficult than patents.

While a decision will have to be taken on a case-by-case basis, in the following circumstances, it would be advisable to consider trade secret protection:

• When the subject matter which has been kept secret is not patentable.
• When the likelihood is high that the information can be kept secret for a considerable period of time. 
• When the trade secret is not considered to be of such great value to be deemed worth a patent (though a utility model may be a good alternative in countries where utility model protection exists).
• When the secret relates to a manufacturing process rather than to a product, as products would be more likely to be reverse engineered.