POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
1.4 Elements of Trade Secret Protection Under the UCL, the following prerequisites must be jointly met to protect a given piece of information as a trade secret: • such information must be confidential – ie, not easily accessible to persons that normally deal with the kind of information in question, either as a body or in the precise configuration and assembly of its components; • such information must have a commercial value; and • such information must be subject to appropriate (reasonable) efforts to maintain its confidentiality. 1.5 Reasonable Measures One of the prerequisites to apply the trade secrets regime is taking appropriate steps to keep the infor - mation confidential (see 1.4 Elements of Trade Secret Protection ). Such steps include both factual and legal actions, for example: • providing information on a “need-to-know” basis; • password protection; • file access control; • encryption measures; • the obligation to wear badges in a workplace, enabling the identification of employees and the distinction of authorised personnel from visitors, as well as restricting access to designated areas to employees with appropriate clearance; • appropriate staff training to raise awareness of trade secrets issues; • executing non-disclosure agreements; and • notices in documents and correspondence. In some cases, an implied intent to keep information confidential may be sufficient to apply trade secrets protection. As a general rule, the extent of the necessary steps depends on a particular case’s circumstances, includ - ing a relevant enterprise’s size and the relevant market sector. 1.6 Disclosure to Employees If an employer takes appropriate steps to keep the information confidential, in particular by executing
non-disclosure agreements with employees (see 1.5 Reasonable Measures ) and informing an employee of the confidential nature of the disclosed information, the disclosure of such information to the employee does not affect its protection as a trade secret (so long as other prerequisites for the protection are met, see 1.4 Elements of Trade Secret Protection ). Regarding the use of employees’ general knowledge and skills, see 4.1 Pre-Existing Skills and Expertise . Regarding the burden of proof in a trial against a for - mer employee, see 5.5 Initial Pleading Standards . 1.7 Independent Discovery Independent discovery and reverse engineering con - stitute legitimate means of acquiring a trade secret. Therefore, as a rule, the trade secrets protection regime may not be invoked to prohibit the use of infor - mation acquired in that manner. However, an item/ product subject to reverse engineering should be in the public domain or in the lawful possession of the person acquiring the information and whose right to acquire the information is not restricted (eg, under a licence agreement). Because of independent discovery or reverse engi - neering, the same piece of information may be pro - tected as a trade secret for the benefit of two or more independent entities. The public disclosure of such information by one person results in the loss of protec - tion for all independent trade secret owners. 1.8 Computer Software, Artificial Intelligence and Technology There are no specific provisions regulating the pro - tection of computer software or technology as trade secrets. The Law on Copyrights and Neighbouring Rights (4 February 1994) regulates the limits for per - mitted analysing, testing and decompiling of a com - puter program from the copyright perspective. Copy - right protection of a computer program may overlap with trade secrets protection (see 1.12 Overlapping IP Rights ).
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