The Law and Theory of Trade Secrecy
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The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg

This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.
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Chapter 6: Trade Secrets as Intellectual Property Rights: A Disgraceful Upgrading – Notes on an Italian ‘Reform’

Gustavo Ghidini and Valeria Falce


*1 Gustavo Ghidini** and Valeria Falce*** Since Italy’s enactment of a new Code of Industrial Property in 2005, trade secrets have gained the status of an intellectual property right. Because the request for stronger non-patent protection for trade secrets is growing across jurisdictions, the Italian experiment should be of interest to foreign observers, who would be well advised to prevent this untoward development becoming part of their own legislation. I. THE TRADITIONAL LEGAL FRAMEWORK As in many legal systems, both civil and common law, the protection of industrial and trade secrets (that is, any information which has an economic value by reason of being confidential, is subject to reasonable measures to keep it as secret, and is in fact not in the public knowledge nor easily accessible or inferable by an average expert in the relevant field) has been traditionally ensured in Italy within the framework, and according to the limits, of unfair competition law. Thus, protection was granted only against acts of ‘misappropriation’, meaning only if either the acquisition was made on behalf, or in the interest of, a competitor and in ‘a manner contrary to honest commercial practises’. Since misappropriation generally required a breach of contract, a breach of confidence, or an inducement to breach, competitors were liable for infringement only when they * The present Article refers to the Italian rules on trade secret protection introduced in the original text (2005) of the Italian Code on Industrial Property. Subsequently, in 2010, those rules have been marginally and formally...

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