In the recently published Special 301 report in 2016 by the United States Trade Representatives, India was placed in the category of Priority Watch List which indicates that a country has particular problems with respect to IPR protection, enforcement, or market access for persons relying on IPR. One of the main concerns raised in the report is related to the absence of a legislative framework for the protection of Trade Secrets in India. The issue of trade secrets becomes even more relevant after the recent Joint Statement by India and United States at the Trade Policy Forum on October 29, 2015 wherein India had also made commitments as regards strong protection of trade secrets in its territory.
The law of trade secrets in Indian at present is a judiciary made law based on the principle of equity and on common law action for breach of confidence, with whole jurisprudence revolving around obligation and duties of the employee towards the employer for confidential information gained during the course of employment. Certain protection has been provided under the Information Technology Act, 2000 (Section 72), but it is limited only with reference to electronic records. Indian jurisprudence regarding Trade Secrets is not clear on a number of important aspects such as the scope of damages in case of breach of confidential information, theft of trade secrets by business competitors and procedural safeguards during litigations in courts. These issues have lead to foreign investor’s reluctance in sharing technical know-how with their Indian counterparts.
In 2008, the Government of India introduced the National Innovation Bill, 2008, which dealt with a number of aspects related to trade secrets. The Bill was a welcome step in the direction of getting a complete law dealing with aspects of trade secret protection such as damages for violation of trade secrets, remedies to protect confidentiality and obligation of confidentiality. However, the bill lapsed and did not become a law.
The recent National IPR Policy has bought in certain hopes for the enactment of a trade secret law, as one of the objectives of the policy is to enact a trade secret law. Although no time frame has been provided for the achievement of this objective however one can be certain there will be trade secrets Law in the near future.