Spicy IP blog reports that Indian government has now released a draft version of the National Innovation Act, 2008 (hereafter "NIA").

Trade Secrecy Provisions
The interesting and perhaps most substantive (at least in terms of enforceability) part of this Bill are the provisions on trade secrecy or "breach of confidence". To appreciate this branch of intellectual property, think the secret Coke formula, the KFC formula and in the Indian context, the Ayurvedic "massage" formula by the famous Kottakal family. Under the "trade secrecy" provisions of the NIA, Kottakal can take steps to prevent the wrongful disclosure of its massage techniques by ex -employees etc to third parties.

With an increasing number of "trade secrecy" cases coming up before Indian courts, this promises to be welcome development for the IP community. So far, courts have protected trade secrets under the common law "breach of confidence" doctrine. With a statutory enactment, there is bound to be more clarity and certainty in the law.

However, the question that needs to be asked is: Do we want the American statutory model of trade secrecy (where trade secrecy norms are codified into a statute) or do we want to retain the flexible case law (judicial) approach that is currently endemic to the UK and India. Both approaches come with their respective pros and cons.

To read the complete post by Shamnad Basheer click here.