As the 2016 presidential race moves into the debate phase, one issue sure to get more and more attention is the proposed Trans Pacific Partnership (“TPP”). In simplest terms, the TPP is a proposed trade agreement between twelve Pacific Rim countries, including the United States, concerning a wide variety of matters of economic policy. Together, the countries account for 40 percent of world economic output. After years of negotiations, an agreement was recently reached on October 5, 2015 after marathon talks in Atlanta, Georgia.
Before negotiations ever began, each of the TPP countries signed confidentiality agreements promising to maintain the secrecy of the negotiations, including the specific terms and provisions being debated. As a result, even though a “deal” has been reached, the exact terms of that deal remain a mystery. That said, before the TPP can become official, the text of the agreement has to be signed and ratified in accordance with the procedures of each of the twelve countries involved. In the United States, that means Congress must accept or reject the TPP within 90 legislative days once the deal is formally submitted for review. According to Politico, many expect Congress to vote on the bill either during the Summer of 2016 or in the lame-duck session after the 2016 elections.
The final terms of the TPP will obviously need to be provided to Congress before any vote can be taken. In the meantime, however, WikiLeaks has been publishing purported “drafts” of the TPP on a regular basis since 2013. According to these leaked materials, the TPP will include a chapter on intellectual property covering copyright, trademarks, and patents, as well as trade secrets. These disclosures are consistent with a public statement from Office of the United States Trade Representative, indicating that each of the TPP countries have agreed that they 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 […].”
One recently leaked “draft” of the TPP includes language requiring TPP signatories to follow the trade secret language found in the Agreement on Trade Related Aspects of Intellectual-Property Rights (commonly referred to as “TRIPS”), which is essentially the same as the trade secret language in the Uniform Trade Secret Act. The leaked documents also indicate that the TPP will move many aspects of trade secrecy into the realm of criminal law, which would obviously be a fairly fundamental change to the focus of current trade secret law, where it is generally treated as a purely civil matter. That said, only when the “official” TPP is finally revealed will we be able to analyze its actual terms. Based on the leaked versions, though, several groups have already begun publishing highly critical commentaries on the TPP’s various proposals for handling intellectual property rights.
It will also be extremely interesting to see how the TPP’s provisions regarding trade secrets interacts with the proposed Federal Trade Secret Legislation recently introduced in the United States’ House and Senate. For more on that, please follow this link to Seyfarth’s ongoing updates. Suffice it to say, 2016 is already shaping up to possible be a watershed year for trade secret legislation on multiple fronts.