INDIA Law and Practice Contributed by: Pravin Anand, Achuthan Sreekumar and Rohil Bansal, Anand and Anand
order to protect the utilisation of trade secrets and to prevent damage, if it cannot be compen - sated in money – can seek restrictions on its agents. In such a situation, equity would step in and prevent any damage from being caused to the business of the principal. Nonetheless, the owner of such trade secret or a licensee is expected to take all reasonable measures to maintain secrecy, and to ensure that such confidential information is imparted to their employees in circumstances importing an obligation of confidence on them as well. 1.7 Independent Discovery If a discovery can be proved as independent, a previously existing trade secret having some connection with such discovery will be incon - sequential. 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 wheth - er the results of such bona fide independent dis - covery or reverse engineering 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 adopt - ed by the defendant to discover the trade secret were not independent and rather were fraudu -
lent, 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 and Technology Computer software is eligible for the following IP protection. • Section 13 of the Copyright Act, 1957 states that copyright subsists in various works, including literary 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 comput - er 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 Patents, OA/17/2020/PT/DEL). • Trade secrets are also protected through contracts and non-disclosure agreements (NDAs). • The claimant may also approach the con - cerned court or police for necessary protec - tion. 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 contractu -
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