Information, knowledge, inventiveness and creativity are the raw materials of the economy in the coming years. Enterprises, irrespective of their size, value trade secrets as much as patents and other forms of intellectual property rights and use confidentiality to foster business competitiveness and research innovation. Trade secrets cover a wide range of information, which extends beyond technological knowledge also to commercial data such as information on customers and suppliers, business plans or market research and strategies.
European enterprises, however, are also increasingly exposed to the misappropriation of trade secrets, committed by competitors or even their own employees. Once such misappropriation surfaces, enterprises must act promptly to stop further leakage of information and to prevent the unlawful use and further disclosure of misappropriated trade secrets by third parties. At the early stages of each investigation of IP-theft, time is always of the essence.
In a recent decision, the Austrian Supreme Court had to decide on the level of detail a plaintiff has to present to the court, when applying for an interim injunction prohibiting the use of trade secrets. In the subject case counseled by the author, employees had downloaded several thousands of critical files before leaving the client's enterprise for employment by a direct competitor. The downloads had been protocolled by a so-called "data loss prevention software" (DLP-software) and categorized in critical data (red) and nonsensitive information (green). Since an exact description of each individual file was not reasonable, given the time pressure, Wolf Theiss decided to identify striking examples for trade secrets misappropriated and to rely on the automated categorization done by the DLP-software for the rest, when applying for the interim injunction.
The court of first instance accepted the application and issued an interim injunction prohibiting the former employees from using the files so identified. The defendants fought the decision in two instances, basically arguing that the reference to the categorization of the DLP-software was not detailed enough in order to allow for a proper defense and that an interim injunction prohibiting the use of trade secrets identified by files only, would only shift the dispute to the enforcement proceedings. The Austrian Supreme Court, however, confirmed the decisions of the lower courts and held that for the purpose of preliminary proceedings, the applied level of substantiation was sufficiently detailed to identify the trade secrets (9 ObA 93/15i).
Even though the Supreme Court's decision is limited to the subject case, it will presumably help other owners of trade secrets in the future to efficiently fight misappropriation by legal means in due time. Moreover, the case also suggests that not only legal means, but also compliance software, such as the DLP-software, will play an increasingly important role in the prevention and documentation of IP-theft in the future.