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Trade secrets litigation in France

What trade secrecy protects

Trade secrets became a legal asset in their own right with the French Act of 30 July 2018. They protect what the patent does not: manufacturing processes, test data, supplier lists, production parameters. And they are defended under rules of their own. Dhenne Avocats conducts these disputes before the Paris Judicial Court and protects its clients' secrets in evidentiary proceedings.

Articles L. 151-1 et seq. of the French Commercial Code, which transpose Directive (EU) 2016/943, define protected information through three cumulative conditions: it is not generally known or readily accessible, it has commercial value because it is secret, and it is the subject of reasonable steps to keep it secret.

The third condition is the one that loses the most cases. Information may be strategic and yet worthless in court if the company cannot show the steps it took to keep it secret. That documentation work is done before the dispute.

The classification of know-how as a trade secret is not automatic. A tailored non-disclosure agreement (NDA) and appropriate access controls and records help protect this information and establish evidence.

Patent or secret

The choice between filing and secrecy is a business decision before it is a legal one. A patent grants a time-limited monopoly in exchange for full disclosure. Secrecy is unlimited in time but gives no protection against independent discovery or lawful reverse engineering.

In practice the two regimes coexist within a single portfolio: the process stays secret, the product is patented. We advise on that interface, in particular during transfers and intellectual property audits.

Trade secrets in the proceedings

Articles L. 153-1 et seq. of the French Commercial Code organise the protection of secrecy before the court: restricted access to documents, disclosure in non-confidential form, a confidentiality club, and adapted hearings and decisions. That machinery now sits at the heart of patent litigation.

It is decisive after a saisie-contrefaçon, where the seized documents are placed under sequestration and the seized party seeks to have all or part of the material excluded. It is equally decisive before the Unified Patent Court, where the production of comparable licences in FRAND disputes raises the same questions.

The disputes we conduct

  • Claims for the unlawful acquisition, use or disclosure of a trade secret.
  • Defending the employee or contractor accused of taking know-how.
  • Evidentiary and provisional measures, for claimants and defendants alike.
  • Protecting secrecy in pending proceedings: sequestration, confidentiality clubs and redacted versions.
  • Know-how disputes arising from the breakdown of an industrial partnership or a development agreement.

Contact us

Trade secret cases are won or lost quickly: evidence of misappropriation degrades and protective measures lose their value with time. Write to us for a first discussion on feasibility and timing.

Le cabinet propose également un programme structuré d’trade secret audit : inventaire des actifs confidentiels, mesures de protection raisonnables et dossier de preuve.

Pour approfondir : reasonable protective measures, unlawful acquisition, use and disclosure, confidentiality club, employee mobility and clean room.