WIPOD – Page Points: Transcript of Episode 21
Intellectual Property and Trade Secrets
Gabriela De Obarrio
Hello and welcome to Page Points, WIPO Knowledge Center's podcast series, where we highlight insights from WIPO's latest publications. I'm Gabriela de Obarrio, and today we're talking about a fascinating, but often overlooked area of intellectual property: trade secrets.
Joining me today is Aida Dolotbaeva, Senior Legal Officer in WIPO's Patent and Technology Law Division, the unit behind WIPO's work on trade secrets, from capacity building to technical assistance for member States, and of course, contributing to broader initiatives such as the Guide to Trade Secrets and Innovation, which we will feature in today's episode.
Aida, welcome and thank you for joining us.
Aida Dolotbaeva
Thank you, Gabriela. It's a pleasure to be here and to talk about a topic that's becoming more and more important for innovators and businesses around the world.
Gabriela De Obarrio
Aida, before we get into the details of the Guide, let's take a step back. What exactly is a trade secret? And is this a new concept?
Aida Dolotbaeva
Not at all. The idea of keeping valuable information secret is as old as business itself.
From the makers of ancient dyes and ceramics to today's tech companies, enterprises have always protected their know-how to stay competitive. Broadly speaking, a trade secret can be almost any kind of confidential business information that has economic value and gives its holder a competitive advantage because it's secret.
It could be a formula, a process, an algorithm, customer data, or business strategy. The range is incredibly broad.
Gabriela De Obarrio
So, it's not just high-tech inventions or famous secret formulas like the Coca Cola drink or KFC's blend of herbs and spices.
Aida Dolotbaeva
Exactly. People often think of the crown jewels of the company, like the algorithm behind a search engine or the formula for a best-selling drink. But in fact, a wide variety of information can qualify as a trade secret. This can include technical information such as techniques, designs, drawings, architectural plans, manufacturing or repair processes, or other forms of confidential business information that are available to the enterprise. It can also include commercial information like marketing strategies, lists of suppliers or clients, consumer profiles, sales or distribution methods, or financial data such as price leads. Even so-called negative information, knowing what doesn't work or works less well, can be a trade secret.
Gabriela De Obarrio
That's true, even negative information can be just as valuable. I imagine knowing what doesn't work can give an enterprise a real competitive advantage because competitors would love to avoid wasting time and money repeating the same failed research.
Aida Dolotbaeva
Absolutely. And I like how someone once put it, trade secrets are simply things you don't want your competitors to know. That phrase is often attributed to Thomas Edison and I think it captures the essence beautifully.
Gabriela De Obarrio
I agree, that's a great way to put it. So, we talked about different kinds of information that can be protected as trade secrets and they don't have to be the crown jewels of a company.
Does that mean trade secrets could also be relevant for smaller businesses, say in developing countries? Could you share an example?
Aida Dolotbaeva
Definitely, the size of the company doesn't really matter. Trade secrets can be just as valuable for small and medium-sized enterprises as for large corporations. In fact, data shows that SMEs often rely on them even more than other forms of intellectual property.
One great example comes from Angostura Limited in Trinidad and Tobago. The company's secret recipe for its world-famous bitters has remained unchanged for two centuries. That formerly is treated as a trade secret. Only a handful people have known it and it's mixed behind closed doors. What's remarkable is that Angostura also combines the trade secret with other IP tools like trademarks and domain names, which strengthen its brand and market presence both locally and internationally.
It shows that even business built on traditional locally sourced ingredients, not necessarily something new in the patents sense can thrive when confidentiality, branding, and IP strategy works together. For smaller companies, especially in developing countries, it's an inspiring reminder that trade secrets can help turn local know-how into lasting value.
Gabriela De Obarrio
That's a fascinating example, Aida. But beyond individual companies, how are trade secrets protected internationally? I imagine there must be some global framework for that.
Aida Dolotbaeva
Yes, there is, and it's actually developed in two important stages. The first major step came with the Paris Convention for the Protection of Industrial Property adopted back in 1883. It didn't mention trade secrets by name, but it introduced a key obligation.
Countries have to provide effective protection against unfair competition. That broad principle, protecting businesses from dishonest commercial practices, was understood to include the misuse of confidential business information like trade secrets.
More than a century later, this foundation was strengthened by a newer treaty called the TRIPS Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights, administered by the World Trade Organization. For the first time, TRIPS made the protection of undisclosed information, or what we now call trade secrets, a specific and binding legal obligation for all WTO members.
Under Article 39, members must ensure that confidential business information is protected against disclosure, acquisition, or use by others without consent provided three conditions are met. First, the information must be secret. The second, it should have commercial value because it's secret. And third, reasonable steps have to be taken to keep it secret.
So, TRIPS took what had been a general principle under the Paris Convention and turned it into a clear international standard for trade secret protection.
Gabriela De Obarrio
So it's not only that the holder must keep the valuable information confidential, but also take concrete steps to make sure it stays that way.
Exactly, and that's one of the points we will look at more closely in the Guide, what those practical steps can be and how organizations can implement them effectively.
Gabriela De Obarrio
And since you mentioned the guide, let's talk first about why WIPO created it. What was the motivation behind developing this new trade secrets guide?
Aida Dolotbaeva
Yes, the idea was to create a comprehensive and up-to-date reference that could serve many audiences, scholars, businesses, judges, and policymakers alike. As we have discussed earlier, under the TRIPS agreement, all WTO members are required to protect trade secrets. While most countries have laws in place, in practice, the implementation and enforcement of those laws vary widely.
We noticed that while trade secret protection is quite advanced in some parts of the world, in others, awareness and practical application remain limited. Through WIPO's regional and national seminars, we identified some recurring challenges. In some countries, laws on trade secrets exist, but are dormant, their practical application remains limited. In many other countries, the penalties for misappropriation are simply too low to determine misconduct.
And there is often limited expertise among enforcement assortments and judges and trade secrets are still rarely taught in law schools in some countries. So there was a clear need for a strong practical information tool. One that brings together legal, economic and practical perspectives and helps raise awareness and build capacity across different audiences.
It's also designed as a resource for universities and training institutions, to help integrate trade secret protection into law and business curricula where the subject is still rarely taught. That's what motivated the guide to make the concept of trade secrets more accessible and to offer a practical reference for a wide range of users from policymakers and business managers to universities and innovation-oriented organizations. It provides an overview of many issues connected to trade secrets and helps readers easily to find policy, legal and practical information in sufficient depths.
At the same time, the guide can serve as a background material for those interested in IP strategy and management, since trade secret management is always part of a broader business and intellectual property strategy. And of course, it's also meant to support general awareness, teaching and capacity building in this field.
Gabriela De Obarrio
So the guide isn't just explaining the law, it's helping make those systems actually work in practice around the world.
Aida Dolotbaeva
Exactly, it's about making trade secret protection a living functional part of innovation ecosystems everywhere.
Gabriela De Obarrio
So Aida, after hearing why WIPO created the guide, let's turn to what's actually inside it. How is it organized?
Aida Dolotbaeva
The guide is divided into several main parts, each focusing on different aspects of trade secrets, from the big picture to very practical issues.
Gabriela De Obarrio
Could we go through them briefly?
Aida Dolotbaeva
Sure. Part One sets the stage. It explains the purpose of the guide and how readers can use it. It's not a rule book, but a flexible reference that captures common approaches to trade secret protection around the world. And in the web version, there are also two supplements: one gives an overview of national regional systems and the other looks at management practices across different industries.
Part Two looks at why trade secrets matter in the bigger picture, how they support fair competition, help shape national IP policies and make knowledge creation and sharing more efficient.
Gabriela De Obarrio
That's a really important point. Policy makers and governments need to understand why trade secrets matter, how they contribute to fair competition, help shape national IP strategies and support innovation ecosystems.
Aida Dolotbaeva
Exactly. Part Two of the guide explains its broader objectives very clearly. It looks at high-level goals of trade secret protection and its role in today's global innovation landscape. One that's fast-paced, connected, and built on both open and closed business models. It also discusses what effective national policies and strategies for trade secret protection look like in practice.
Then Part Three looks at the basics of trade secret protection, the key legal principles, how trade secrets differ from patents, and how companies actually use and benefit from confidential information and practice.
Gabriela De Obarrio
Wait, could you elaborate on that last part? You just mentioned that Section 3 also compares trade secrets and patents. That's always a tricky decision for innovators. How does the guide help readers think through whether to protect a technical invention as a trade secret or through a patent?
Aida Dolotbaeva
That's a great question and it's something that the guide explains really well. Choosing between trade secret protection and patenting depends on several factors. Patents require you to disclose the invention publicly, but in exchange you get exclusive rights for a fixed period, usually 20 years. Trade secrets on the other hand, rely on keeping the information confidential. There is no time limit, but once it's become public, protection is lost.
The guide highlights key points one has to consider when it comes to choosing whether to protect the technical innovation as a trade secret or a patent. First point to consider, how easily the invention can be reverse engineered. If it's easy to copy, a patent might be safer than a trade secret. Second, how long the information will stay valuable. Short-term advantages can often be protected as trade secrets.
And last point to consider is business strategy and resources. Patenting can be costly and slow, while trade secret protection is more flexible but requires strong internal safeguards.
Gabriela De Obarrio
So it's really about aligning the protection method with the nature of the innovation and the company's goals.
Aida Dolotbaeva
Exactly. The guide doesn't say one approach is better than the other. It encourages decision-making based on context, sector, and the innovation lifecycle.
Gabriela De Obarrio
That's really helpful. So once a company decides that keeping something secret is the better option, I guess the next big question is how to manage it effectively.
Aida Dolotbaeva
Exactly. And that's what Part Four of the guide focuses on. Management. How organizations identify and safeguard confidential information and what reasonable steps really mean in practice.
Gabriela De Obarrio
That's interesting. You mentioned reasonable steps. Can you tell us a bit more about what that means and what this part of the guide explores in detail?
Aida Dolotbaeva
Sure, this part of the guide is very practical. It explains how companies can identify their trade secrets, assess risk, and adopt appropriate safeguards like access controls, employee training, non-disclosure agreements, and clear internal policies. It also covers how to prevent misappropriation or unintentional leaks, and even how to avoid contamination from others' confidential information.
Gabriela De Obarrio
That's really practical advice. Of course, even with good management, disputes can still happen. What does the guide say about that?
Aida Dolotbaeva
That's where Part Five comes in. It addresses trade secrets in litigation, how disputes are handled, what remedies exist, and how courts protect confidential information during proceedings.
Gabriela De Obarrio
Litigation sounds tricky after all taking a case to court could risk exposing the very secret you're trying to protect. How does the guide approach that?
Exactly, that's one of the main challenges. This part explains the balance between transparency and confidentiality. It looks at tools courts can use like protective orders, confidentiality rings, and in-camera sessions to keep sensitive information secure while ensuring fair process. It also points out that alternative dispute resolution such as mediation or arbitration can sometimes be a safer route.
Gabriela De Obarrio
That's fascinating. So after dealing with what happens when things go wrong, the guide also looks at how trade secrets can be shared safely, especially when different partners collaborate on innovation, right?
Aida Dolotbaeva
Exactly. Part Six focuses on collaborative innovation. How trade secrets are managed when universities, companies, or research institutions work together. It looks at how to set clear boundaries from the start. Who owns what? Who can access which information? And how to handle confidentiality throughout a partnership.
Modern innovation strives on collaboration, which means sharing information and trade secrets are key to managing that sharing safely. The guide offers practical advice on structuring agreements, clarifying what's shared, what stays confidential, and how the outcomes of collaborations are managed.
Gabriela De Obarrio
So they enable cooperation rather than blocking it.
Aida Dolotbaeva
Exactly. Trade secrets build trust between partners and trust drives collaboration. Part 6 really emphasizes that clear rules and mutual understanding make it possible to innovate together while still protecting everyone's interests.
Gabriela De Obarrio
Right, we've talked about collaboration and sharing, but a lot of innovation today happens in the digital space. Does the guide also cover trade secrets in that context?
Aida Dolotbaeva
Yes, that's what Part Seven is about. It deals with digital objects such as algorithms, programing codes, processing data, even meta data, and explains when such digital assets can qualify as trade secrets. It also explores how the unique risks of the digital world matter, things like ease of copying, cyber-attacks, insider misuse, and how to apply reasonable steps in an online environment.
Gabriela De Obarrio
Those sound like serious challenges with so much information stored or shared online, keeping something secret must be harder than ever.
Aida Dolotbaeva
Exactly. The guide points to measures like inscription, access controls, safe data management system, and clear contractual terms for digital assets. It's about adapting confidentiality to the realities of the digital economy.
Gabriela De Obarrio
This has been such a rich discussion, Aida. We've looked at what trade secrets are, how they're protected internationally, and how the new WIPO Guide brings all these dimensions together, from management and collaboration to the challenges of the digital world.
Aida Dolotbaeva
Exactly. Trade secrets may not always make headlines like patents or trademarks, but they are an essential part of how innovation really happens. Quietly, behind the scenes, through knowledge, trust, and good management.
Gabriela De Obarrio
And the WIPO Guide gives everyone from policymakers to business managers and educators a practical tool to understand and apply those principles.
Aida Dolotbaeva
That's right. Whether you're running a startup, shaping a national policy, or teaching the next generation, protecting and managing confidential knowledge is now a key part of staying competitive.
Gabriela De Obarrio
Aida, thank you so much for taking us through this fascinating topic. So what's next for WIPO's work on trade secrets?
Aida Dolotbaeva
We are continuing our capacity building activities with member States, offering training for judges, policymakers, and SMEs, and developing new resources such as case law collection that shows how different courts approach trade secret disputes. We're also preparing a distance learning course that introduces the legal, economic, and management aspects of trade secrets. And going forward, our work will keep focusing on strengthening understanding and practical use of trade secrets as essential tools for innovation.
Gabriela De Obarrio
Thank you, Aida, for walking us through these important insights. The WIPO Guide to Trade Secrets and Innovation is available on WIPO's website, and I encourage our listeners to explore it further.
This has been the WIPO Knowledge Center's Page Points podcast. I'm Gabriela de Barrio.
Thank you for listening, and until next time, keep learning, keep protecting, and keep innovating.