Do you want to know a secret?
During my over 20 years as an IPR lawyer, it has been interesting to follow how Finnish companies choose to protect their technology, whether by patenting it or by designating it as a trade secret. In my experience, companies have usually strived to patent their technology, if possible, as this has traditionally been deemed the way to do it. Patenting is a time-consuming and costly way forward and as the invention protected by the patent becomes public, many companies have had to resort to litigation to either protect or enforce their exclusive right to the invention. This path has been even more time-consuming and costly. And in many situations, it has simply been too difficult to enforce the patent against an infringer.
As a result, many companies have decided to re-think their strategy on how to protect their technology. By designating the technology as a trade secret, a company can avoid public disclosure, and thus unauthorized copying, of its technology. This has also proved to be a cost-efficient way of protecting technology. There are of course downsides to this approach as well, but a clear trend among tech-heavy companies seems to be to at least consider the strategic decision of whether to go down the trade secrets route instead of the patent route.
Since 2018 we have a unified legal framework governing trade secrets in Finland, as the EU Trade Secrets Directive has been implemented by the Trade Secrets Act with remedies set out in the Penal Code. For information to be designated as a trade secret, the company is required to undertake reasonable measures to keep it secret. What qualifies as "reasonable" steps varies depending on the company and information in question. It is important for a company to ensure that both management and personnel have such awareness.
An experienced IPR lawyer needs to be able to explain the benefits and downsides of both aforesaid alternatives to a company’s management. At Vestra, we are specialized in advising our clients on how to choose between these alternatives as well as in supporting them while they venture down the chosen path.
