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In a last and enforceable judgment of 12 March 2021
(LF-2020-92904), Frostating Court docket of Attraction discovered there to be
illegal use of commerce secrets and techniques by a former worker utilizing his
data gained on the employer to develop a competing product.
Attorneys Sigurd Holter Torp and Trond Sollund in Schjødt
represented the employer, and now we have commented on the judgment in
a earlier publication. Within the wake of the judgment, there was
a debate concerning the judgment and the safety of commerce
secrets and techniques.

Professor Harald Irgens-Jensen has commented to Teknisk Ukeblad
that the judgment in his opinion takes too little account of the
undeniable fact that even workers with superior technical data ought to
have the ability to change jobs and go to a competitor. Professor
Irgens-Jensen is important of the “sum of information”
idea and its use and believes that it’s poorly anchored within the
EU Directive on Commerce Secrets and techniques. He believes that it shouldn’t
merely be for a earlier employer to level out that an individual has
benefited from expertise from the event of a sophisticated
technical product when the individual has created a brand new, aggressive
product – and believes that one ought to examine merchandise to a
larger extent in instances on unfair use of commerce secrets and techniques.

We’ve got responded by commenting that the unanimous judgment of
the Court docket of Attraction offers the proper expression of relevant legislation,
and that the judgment thus doesn’t characterize any new software
of legislation. That is additionally supported by the truth that the opposing
get together’s enchantment was not allowed for listening to within the Supreme
Court docket, and likewise that different judgments from the Courts of Attraction that
have been primarily based on related “sum of information” views have
not been allowed for listening to within the Supreme Court docket. There’s nothing
within the new Act referring to Commerce Secrets and techniques that modifications this. On the
opposite, the preparatory work to the Act states that an vital
justification for the safety of commerce secrets and techniques is to stop
enterprise actors from gaining unfair aggressive benefits via
entry to others’ outcomes of effort, funding and trial and
error.

One might be important of the “sum of information”
idea and its use, however now we have identified that the prevailing
legislation has been established and clarified. As well as, the precept
is predicated on the very best causes, particularly, to guard the numerous
expertise base an organization accumulates by spending a few years
growing a technically demanding product which they  alone
possess. An worker with full perception into this data base
shouldn’t be in a position to make the most of it to to develop an virtually
similar competing product, in a short while and at an affordable value.
Quite the opposite, an worker with such data and such plans
should act with appreciable care to keep away from infringement, as case legislation
has beforehand identified. Such a requirement for prudent and
loyal conduct can be vital with the intention to make sure that an organization
that invests in product improvement has cheap assurance that
key workers won’t take with them the experience they accumulate
and use it in competing companies.

The evaluation of whether or not somebody has unlawfully made use of
others’ commerce secrets and techniques is way extra advanced than simply evaluating
the merchandise, because the Court docket of Attraction appropriately assumes. If one have been
solely to check merchandise, it could be very straightforward to avoid the
infringement of commerce secrets and techniques by merely designing the product with
a small distinction to the unique product.”. Whether or not there’s
illegal exploitation is dependent upon a particular and complicated evaluation,
the place e.g. emphasis shall be positioned on the similarity between the
merchandise, improvement time and improvement prices, in addition to
consideration for freedom of commerce and the corporate in query.

Affiliate Professor Haakon Thue Lie has commented to Teknisk
Ukeblad that the judgment is unlucky for innovation and freedom
of commerce in Norway, and that the judgment makes it dangerous for
workers to alter jobs to a competitor. He believes that the
judgment makes it potential for corporations to assert that the
data a former worker has in his head constitutes the
safety “sum of information”, with out the worker
having been particularly informed what the secrets and techniques include.

We’ve got refuted this by mentioning that Affiliate Professor
Lie claimed the identical as an skilled witness within the Court docket of Attraction
with out succeeding along with his views, that are additionally incompatible with
a number of judgments from the Courts of Attraction. In our opinion, it’s
not cheap to set such necessities for concretization as he
claims, and which might not defend the company-specific expertise
base that over years is accrued in innovation corporations, and
which, e.g., may be data of what doesn’t work.

The info on this case have been particular, in that the employer had
been in a position to develop a product over a lot of years which was
distinctive within the international market, they usually protected their expertise
via secrecy. When a competing product entered the market, which
was virtually similar to the unique product, it was from a trusted
worker who for 16 years had accrued complete data concerning the
product and all of the employers’ experiences, and who had left a
few years earlier. In that context it’s fairly straightforward to determine
infringement of commerce secrets and techniques, because the Court docket of Attraction concluded. A
former worker who acts loyally and diligently, and who solely makes use of
the overall experiences he has accrued with the employer, will
not be in danger. We’ve got subsequently commented that there is no such thing as a foundation
for the far-reaching penalties Lie expresses.

The judgment has thus created debate, and the judgment could be very
vital with the intention to defend innovation in Norway. It’s a
prerequisite for expertise improvement in a contemporary society that
there’s a response in opposition to the abuse of commerce secrets and techniques. The necessity to
react to such abuse is emphasised, inter alia, within the preamble to
the EU Directive on Commerce Secrets and techniques, (EU) 2016/943, merchandise 1. If such
conduct as was seen on this case have been allowed, the safety of
commerce secrets and techniques would in actuality be undermined to the extent of being
insignificant, opposite to the EU Directive and the
legislator’s intention to make clear and strengthen the safety
of commerce secrets and techniques.

Initially Printed 02 November 2021

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