MEXICO Trends and Developments Contributed by: Roxana Aispuro, BC&B Law & Business
cial strategies, documented internal procedures, algorithms, processes that are applied in com - puter programs, and the computer programs themselves. In terms of validity, the protection of a trade secret is maintained indefinitely as long as the information is kept as confidential and complies with the other aforementioned legal require - ments. It should be kept in mind that the disclosure of any information (intentional or accidental) changes the nature of the information from con - fidential to public and, therefore, it can no longer be considered a trade secret. In this sense, even controlled disclosure can affect the existence or duration of a trade secret, as the information loses the confidential nature necessary for trade secret protection. The only exception is informa - tion provided to any authority by a person exer - cising legal control over the trade secret, when provided for such purpose; this information is not considered to be in the public domain or disclosed by legal provision. In Mexico, the identification, maintenance and validation of a trade secret rely on management and legal measures that must be performed day-to-day within the company or institution. According to Article 163 of the FLPIP, for infor - mation to be a trade secret, the person who exer - cises legal control over it must demonstrate the implementation or adoption of sufficient means or systems to preserve its confidentiality and/or restrict access to it. The FLPIP does not specify what kind of means or systems can be adopted; it depends on the resources of the company or institution and the nature of the trade secret. Nevertheless, from a practical perspective, it is recommended that – at the very least – the com -
pany and/or institution implement or adopt the following best practices: • marking the information related to a trade secret as confidential; • keeping the information in offices or ware - houses with controlled or restricted access; • adopting technological security means such as the use of passwords, facial recognition, and fingerprints; • signing contracts or confidentiality and non- disclosure agreements with the person who has access to trade secrets; • creating and promoting within the company a culture of protection of confidential informa - tion and trade secrets; • defining internal policies to define which information will be considered to be a trade secret, given that not all confidential informa - tion is a trade secret; • defining internal levels of authorisation to obtain confidential information and trade secrets, depending on the position and activi - ties of the employee; • identifying internally the important assets for the company that shall be considered as trade secrets and creating an assets inven - tory; • documenting the trade secret in physical or electronic media; and • warning any person in the company that they have access to information related to trade secrets. Owners of a trade secret must be prepared to implement and maintain all needed means and measures to protect their trade secrets and pre - vent their intentional or accidental disclosure. The disclosure of a trade secret must be made in a conscious and strategic manner, considering the interests of the business and with the knowl- edge that – once disclosed – it will no longer be
200 CHAMBERS.COM
Powered by FlippingBook