Trade Secrets solve for protection of Indigenous traditional knowledge under existing IPR regimes.

(Marcia Ellen DeGeer holds a Juris Doctorate from the New England School of Law, and is now a lawyer specializing in business. 2002, Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge. New England Journal of International and Comparative Law, Vol. 9 no. 1, pages 179-208. CPSW - GHS-LHM//)

Trade Secrets. Trade secrets may provide more protection for Indigenous Peoples than patent law. Trade secrets are assigned or licensed and do not require the same amount of complexities that a patent application requires. Trade secret protection does not require “any government filing or approvals to be effective.” Trade secrets are protected as long as they do not become widely known. They allow the inventor to retain control over the trade secret as long as it is kept secret rather than the finite period for patents. There are three requirements for trade secret protection: 1. The information must be kept secret; 2. The trade secrets must have commercial value because it is secret; and 3. The person claiming the trade secret must have made reasonable efforts to keep the information secret. Compared to patent law these requirements have a low bar. First, while the secrecy requirement establishes that the owner know the information is secret and must take precautions to keep it secret, this requirement is not absolute and only expects the holder to make reasonable efforts. Second, courts have tended to construe the commercial value requirement in a lenient fashion by “finding that a secret with ‘potential’ or yet unrealized value can constitute commercial value.” Third, the burden of proof for misappropriation of trade secrets is on the one who owns the trade secret but if the claimant proves misappropriation, the burden shifts to the accused to prove that the information was acquired from another source other than the claimant. Another positive factor in trade secret protection is that when misappropriation is proven the remedies “include injunctions, compensatory damages, and punitive damages for ‘willful and malicious misappropriation.’” While trade secrets offer better protections for Indigenous Peoples than patent law, they still face some of the same challenges as with patent law; they still need to know that they need protection and need access to adequate funds and legal advice.