JAPAN Law and Practice Contributed by: Miki Goto, Ryo Murakami and Akihito Ishii, Anderson Mori & Tomotsune
1.10 Licensing In the context of trade secret protection, licens - ing is significant in that it involves disclosure to third parties. If the disclosure is not made in a manner that ensures secrecy of the informa - tion, such as upon securing of a non-disclosure agreement, the information may be deemed as publicly accessible and lose its protection. Further, the owner should be mindful that, in order to assert misappropriation falling under the fourth bullet in 2.1 the Definition of Misappro - priation , the misappropriating party must have “trade secret disclosed by the business opera- tor” , as opposed to obtaining such information as its own knowledge through transaction with the owner. From this perspective, it is advisable for the owner to identify the information as a trade secret, and demonstrate its intent to pro - vide such information subject to it being treated as confidential. 1.11 What Differentiates Trade Secrets From Other IP Rights In general, whereas intellectual property rights such as patent rights or copyrights are linked and to a specific invention or creative work and thus considered as a kind of property right, trade secret protection is rather understood as a restriction focusing on the act of exploitation. Trade secret protection is also unique in that it requires secrecy, whereas intellectual property right regimes tend to encourage the holder of right to share or publish their invention or crea - tion. 1.12 Overlapping IP Rights Information subject to other intellectual prop - erty rights may also enjoy protection as a trade secret as long as such information fulfils the elements of a trade secret. Even if the scopes
measures employed to keep the information under management as secret. 1.7 Independent Discovery If the relevant information can be revealed through reasonable efforts, such as by conduct - ing analysis on a product in the market by gener - ally available means whose costs are not overly expensive, such information will fail to satisfy the secrecy requirement and not be protected as a trade secret. On the contrary, if the information is only available through extensive reverse engi - neering by experts requiring significant time and costs, it is understood that it may still satisfy the secrecy requirement. 1.8 Computer Software and Technology Although by definition it does not fall under trade secret protection, the UCPA offers protection to so-called big data that does not qualify as trade secrets, and provides similar remedies as trade secrets against misappropriation of such data. 1.9 Duration of Protection for Trade Secrets Trade secret protections shall last perpetu - ally as long as the legal elements required for trade secret protection remain satisfied. Even if the information is disclosed to a third party, the secrecy requirement is satisfied if the informa - tion is not deemed to be publicly accessible or easily obtainable by a third party. This includes cases where the information is disclosed under confidentiality obligations. The effect of accidental or inadvertent disclo - sure is likely to be determined on a case-by-case basis; however, if there is fault on the owner’s side as to the cause of such disclosure, this may be found to demonstrate that the owner did not employ reasonable measures to keep the infor - mation under management as secret.
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