Santa Clara Computer and High Technology Law Journal
January, 2008
Katarzyna A. Czapracka

This paper examines the divergent approaches to application of antitrust principles to trade secrets in the EU and in the U.S. The U.S. antitrust enforcers recognize the need to protect trade secrets and treat them as a type of intellectual property. By contrast, the European Commission takes the view that trade secrets do not merit the same level of deference as that accorded to intellectual property rights. In Microsoft, the Commission decided that Microsoft's refusal to disclose secret interoperability information to its competitors constituted an abuse of a dominant position because the refusal created an unfair competitive advantage for Microsoft. Moreover, as the recent controversy over the implementation of the Microsoft decision shows, the Commission position is that Microsoft does not have the right to charge royalties or control the secret interoperability information it was forced to disclose, unless such information qualifies for patent protection. The source of these divergent approaches may be the lack of harmonized EU standards of trade secret protection. Whereas U.S. antitrust authorities naturally relied on the harmonized principles of trade secrets law, the EU antitrust enforcers, lacking such uniform standards, have been using competition law to shape substantive trade secret laws. In doing so, they have undermined national trade secret protection measures and thus created a legal environment which may discourage private R&D investment and impede diffusion of technologies.