JAPAN Law and Practice Contributed by: Makoto Hattori, Rikita Karakawa, Wataru Takagishi and Taku Shibazaki, Abe, Ikubo & Katayama
requirement of trade secret is still satisfied as long as the third party also manages it as a secret. However, if the third party makes the information public, it loses its Non-Public Nature and ceases to be a trade secret. Reverse Engineering Whether information obtained through reverse engi - neering constitutes a trade secret depends on the dif - ficulty of the reverse engineering. If obtaining the infor - mation requires significant expense and long-term analysis by experts, the requirement of Non-Public Nature is satisfied, even if it is physically possible to obtain the information through reverse engineering. 1.8 Computer Software, Artificial Intelligence and Technology There is no protection specifically limited to trade secrets concerning computer software or AI. However, the UCPA provides protection for “Shared Data with Limited Access” as a protection distinct from trade secrets in order to protect big data used in AI, etc. The definition of “Shared Data with Limited Access” is provided in Article 2, paragraph 7 of the UCPA. One of the purposes of this is to promote data utilisation for AI even if big data does not qualify as a trade secret. 1.9 Duration of Protection for Trade Secrets Protection as a trade secret continues indefinitely as long as the requirements in 1.2 What Is Protectable as a Trade Secret are satisfied; there is no fixed term. However, if the information is made public, it fails the requirement of Non-Public Nature and becomes impossible to receive protection as a trade secret. Even if the disclosure is accidental, it may fail the requirement of Non-Public Nature. If the disclosure of information is made only to a third party who is under an obligation of confidentiality, the requirement of Non-Public Nature is satisfied, so pro - tection as a trade secret can be received. 1.10 Licensing A trade secret owner has the right to license it to oth - ers. Licensing a trade secret does not, in itself, mean that the requirements for trade secret are no longer satisfied. However, if a trade secret is licensed to a third party without imposing an obligation of confiden - tiality, it means the information has been disclosed to
the third party, and it will no longer satisfy the require - ment of Non-Public Nature. In this case, the infor - mation can no longer receive protection as a trade secret. When licensing trade secrets to a third party, it is essential to ensure that the third party is bound by confidentiality obligations and that strict secret man - agement measures are enforced. 1.11 What Differentiates Trade Secrets From Other IP Rights While, for example, the Patent Act and the Trademark Act aim to protect intellectual property by granting exclusive rights to the object, the UCPA aims to pro - tect it by regulating acts of unfair competition regard - ing trade secrets. Additionally, they differ in certain aspects, as follows. • A patent is granted in exchange for the disclosure of an invention, whereas, in contrast, trade secrets require confidentiality. • Unlike patents or trademarks, no registration is required for trade secrets. • Unlike copyrights, patents, or trademarks, any kind of information can be protected as a trade secret as long as the requirements set down in 1.2 What Is Protectable as a Trade Secret are satisfied. • The requirement of Non-Public Nature for trade secrets does not necessarily coincide with the interpretation of “publicly known inventions” under the Patent Act. Under the Patent Act, an invention may be considered publicly known even if only specific persons possess the information, provided they are under no confidentiality obligation. In con - trast, for trade secrets, the requirement for Non- Public Nature may still be satisfied as long as those specific persons effectively maintain secrecy. 1.12 Overlapping IP Rights Even if information qualifies as a trade secret, it may also be protected under other intellectual property laws, provided it meets their respective requirements. For example, among the examples described in 1.3 Examples of Trade Secrets , programme source code may be protected as a copyrighted work under the Copyright Act; therefore, if such code is illegally obtained and reproduced, it is possible to claim com - pensation for damages under both the Copyright Act and the UCPA. Note that while there is a system in
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