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On February 21, 2019 the Law on Business Secrets 1/2019, of February 20 was published in the Official Spanish Gazette. It transposes into Spanish Law the Directive (EU) 2016/943 of the European Parliament and of the Council, of June 8, 20016 on the protection of undisclosed know-how, technological and business information (trade secrets) against their unlawful acquisition, use and disclosure.

The Law contains 5 chapters. The first one defines the business secret, whose notion covers any information that is secret, has commercial value and has been subject to reasonable measures by its owner to keep it secret.

The second chapter defines the circumstances in which the acquisition, use and disclosure of business secrets will be considered lawful and those behaviours constituting an infringement of such secrets.

The third chapter emphasizes the assets nature of business secrets, which implies that they can be transmitted and licensed by their owner.

The fourth and fifth chapters indicate that action may be taken against any infringement of trade secrets before the civil jurisdiction, expressly prohibiting the disclosure of data related to them during the procedure, in order to reinforce their protection. Emphasis is also placed on the regulation of compensation for damages, which extends both to its economic content and to its calculation and settlement, bringing it into alignment with the provisions on patent infringement. With respect to statute barring, the period to exercise actions is three years from the moment in which the legitimate party became aware of the person who infringed the business secret (in the Patent Law, the term is five years since the actions could have been exercised). On the other hand, in addition to the precautionary measures provided for in Law 1/2000, of January 7, on Civil Procedure, the adoption of measures for taking evidence is envisaged, under the conditions established in the Patent Law.

The final part highlights the amendment of Article 13 of the Unfair Competition Act 3/1991, of January 10, to clarify that, although the attribution of the character of unfair competition to the infringement of business secrets remains, this will be governed by the provisions of the new regulation, which will act as a special law. This intends to fit the new law within the framework of protection provided by the Spanish legal system against the infringement of business secrets, regardless of the consequences that will apply for the most serious cases to the types of crime contemplated in Articles 278 and 279 of the Criminal Code.

Law on Business Secrets 1/2019, of February 20 will come into force within 20 days from the date of publication in the Official Spanish Gazette.

The full text of the Law is accessible through this link:

https://www.boe.es/boe/dias/2019/02/21/pdfs/BOE-A-2019-2364.pdf

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