Secret Trade Agreement Includes Agreement On Trade Secrets

A great amount of attention has been focused in recent days on the just concluded Trans Pacific Partnership (“TPP”) negotiations, and it should not escape notice that the TPP promises to enhance trade secret protections in and across the Pacific Rim.  That is because the twelve TPP countries of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam have apparently agreed that each of them will “provide strong enforcement systems, including, for example, civil procedures, provisional measures, border measures, and criminal procedures and penalties for commercial-scale trademark counterfeiting and copyright or related rights piracy. In particular, TPP Parties will provide the legal means to prevent the misappropriation of trade secrets, and establish criminal procedures and penalties for trade secret theft, including by means of cyber-theft…,” according to the statement from Office of the United States Trade Representative (“USTR”).  This could be good news for many businesses operating the Pacific Rim, or competing with those who do, because the future may see better and easier methods of protecting trade secrets and enforcing related agreements such as non-disclosure agreements (NDAs) and post-employment restrictions.

Unfortunately, the exact time table for TPP countries to have these systems in place, and the particular criteria against which compliance will be measured, remain unclear.  That is because the TPP countries, including the United States, signed confidentiality agreements under which each promised to maintain the secrecy of the negotiations and the agreement’s specific terms.  Indeed, as recently as September 25^th, just weeks before the partnership terms were finalized, a federal district court issued an opinion, in Intellectual Property Watch v. U.S. Trade Representative, 13 Civ. 8955 (ER), 2015 U.S. Dist. LEXIS 130105 (S.D.N.Y. Sept. 25, 2015), holding that such agreements were enforceable to the extent that they provided a basis to withhold documentation otherwise called for under a Freedom of Information Act request.  The agreement in question stated that “All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations.”  While the final terms of the TPP itself will undoubtedly be shared with Congress before any vote on approval, it will be interesting to see how claims for underlying drafts, documents and memos are dealt with, not just from the political perspective but from the legal one.  It would certainly be somewhat ironic if the necessity of full debate concerning a pact aimed at, among other things, strengthening confidentiality and trade secret enforcement leads to the parties testing the limits of disclosure of their own confidentiality agreement concerning the pact and its negotiations.