INDIA Law and Practice Contributed by: Pravin Anand and Rohil Bansal, Anand and Anand
It is very important that the plaintiff specifically identi - fies the confidential information that is sought to be protected against disclosure by the employee. The Delhi High Court in Navigators Logistics Limited v Kashif Qureshi and Others CS (COMM) No 735 of 2016 rejected the plaint of the plaintiff for deficient and improper pleadings as regards identifying the confidential information. 1.7 Independent Discovery If a discovery can be proved as independent, a previ - ously existing trade secret having some connection with such discovery will be inconsequential. Needless to say, if the claimant shows mala fides on the part of the defendant and proves that the defendant had access to the claimant’s trade secret – and therefore that the discovery, rather than being independent, is a product of reverse engineering – the court will not accept the respondent’s claims and may hold the respondent guilty of misappropriating the claimant’s trade secret. Also, such a process will have to stand the test of trial, and courts will see whether or not the means adopted by the defendant were bona fide and honest. Firstly, the court will examine whether the results of such bona fide independent discovery or reverse engi - neering have resulted in something worthy of being recognised as a trade secret. If so, the plaintiff’s claim for injunction may not survive, owing to dilution of the trade secret. Furthermore, if it is found that the means adopted by the defendant to discover the trade secret were not independent and rather were fraudulent, the court will not allow the use thereof by the defendant. The courts in John Richard v Chemical Process Equip , AIR 1987 Delhi 372 and in the Konrad Wiedemann case held that trade secrets are protected against misuse by any party who may have a relation with the claimant, irrespective of contract, based on the broad principles of equity. 1.8 Computer Software, Artificial Intelligence and Technology Computer software is eligible for the following IP pro - tection.
• Section 13 of the Copyright Act, 1957 states that copyright subsists in various works, including liter - ary works – and a computer program is a literary work. Reference can be made to the Supreme Court’s order in TCS v State of AP , Appeal(C) No 2582 of 1998. • Patents can be registered as regards computer programs only if such program is attached to a physical device. Standalone computer programs are not entitled to patent protection (order of the IPAB in Ferid Allani v Assistant Controller of Pat- ents , OA/17/2020/PT/DEL). • Trade secrets are also protected through contracts and non-disclosure agreements (NDAs). • The claimant may also approach the concerned court or police for necessary protection. There is no specific legislation or case law in India which deals with trade secrets that are unique to arti - ficial intelligence (AI). In the context of large language models which are configured on complex codes, the principles governing the protection of their trade secrets are the same as mentioned previously. 1.9 Duration of Protection for Trade Secrets Trade secret protection lasts as long as the secrecy is maintained. Once the confidential information enters the public domain, it ceases to be a trade secret. If the disclosure of confidential information is made to employees or agents under contractual obligation to maintain secrecy, they are duty-bound to ensure that secrecy is maintained. Controlled disclosure will depend on the terms and circumstances under which the disclosure was made – ie, on: • what control the claimant exercises while making disclosure; • what amount of information was given and retained; and • the understanding of the parties as regards such information. In the event of accidental disclosure, the information loses the attribute of secrecy and ceases to be a trade secret.
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