SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
3. Preventing Trade Secret Misappropriation 3.1 Best Practices for Safeguarding Trade Secrets Safeguarding To safeguard trade secrets, it is advisable to develop and implement security procedures that would reduce the risk of improper disclo - sure of trade secrets, and to provide evidentiary support for remedies for trade secret misappro - priation. For example, a company may identify and classify trade secrets, and mark them as confidential. Also, a company may limit access to confidential information by: • controlling information on a need-to-know basis; • keeping electronic information secure by using methods that prevent unauthorised access to trade secrets (including firewalls, passwords, encryption and digital signatures); and • tracking or keeping logs of access to the information. It is also important to conduct regular educa - tion for employees and to secure agreements on non-disclosure and confidentiality from employ - ees, vendors and independent contractors. The Original Certificate System The UCPA introduced the original certificate system for electronic documents containing trade secrets, to ease the trade secret owner’s burden of proof regarding ownership in a trade secret misappropriation lawsuit. When the origi - nal electronic document including trade secrets is registered, and once the original certificate is issued, the recipient of the original certificate is
presumed to have possessed the information as stated in the relevant electronic document at the time of registration. However, receiving the original certificate for a certain technology or data merely means that the recipient is presumed to possess the reg - istered information at such time, and does not necessarily mean that the electronic document is automatically recognised as a trade secret. The original certificate system for trade secrets: • reduces and eases the burden of proof on the trade secret owner that it “owns the relevant trade secret at a certain point in time” ; • forestalls trade secret misappropriation by systematically placing a time stamp on an R&D outcome, so that employees recognise that the information is being managed as a trade secret; • may positively influence the court in recog - nising that the relevant information has been managed as a secret when a legal dispute occurred; and • may be used to prove prior use rights or prior invention with respect to another person’s patent rights. 3.2 Exit Interviews During exit interviews, an employer reminds departing employees of confidentiality or post- employment restrictive covenants, and demands the return of all proprietary information. An employer commonly has departing employ - ees sign a certification during the exit interview acknowledging that they received copies of exe - cuted post-employment restrictive covenants, and certifying that all confidential or proprietary company information and property have been returned.
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