Confidential Information PDF

Corporate & Commercial Practice Intellectual Property Confidential Information Intellectual Property Office of Singapore Economists estimate that trade secrets comprise roughly two-thirds of the value of companies’ intellectual property portfolios Co...

Corporate & Commercial Practice Intellectual Property Confidential Information Intellectual Property Office of Singapore Economists estimate that trade secrets comprise roughly two-thirds of the value of companies’ intellectual property portfolios Copyright © 2024, Singapore Institute of Legal Education Protecting confidential information… …by entering into contractual obligations that limit what a recipient can do with information: – Freestanding non-disclosure agreements – Standard confidentiality clauses Copyright © 2024, Singapore Institute of Legal Education Protecting confidential information… …by restricting access to the information: – Technical protection measures – Data rooms – Authorised persons Copyright © 2024, Singapore Institute of Legal Education Protecting confidential information… …by raising awareness of the confidential nature of the information: – Marking documents – Keeping records – On-boarding and off-boarding employees Copyright © 2024, Singapore Institute of Legal Education Sample non-disclosure clause The Receiving Party shall keep the Confidential Information strictly confidential and shall not, without the Disclosing Party’s prior written consent, disclose or use any of the Confidential Information, in whole or in part, for any purpose other than the Project. The Receiving Party will employ all reasonable measures to protect the Confidential Information from unauthorised or inadvertent disclosure, including measures no less protective than those measures that the Receiving Party employs to protect its own information. Copyright © 2024, Singapore Institute of Legal Education Contractual considerations What should happen to copies and physical documents after the project ends How should the parties handle circumstances that force disclosure to an unauthorised party Will the parties have to disclose to group companies, affiliates, or third parties in order to carry out their contractual obligations Would litigation over the agreement be detrimental to the confidentiality of the information Copyright © 2024, Singapore Institute of Legal Education  Breach of confidence (a) Information confidential in nature (b) Information imparted in circumstances importing an obligation of confidence (c) Unauthorised use or disclosure Megarry J, Coco v Clark, p 47 - 48 Wrongful loss + ‘taker’ cases In Lim Oon Kuin v Rajah & Tann Singapore LLP SGCA 29, the Court of Appeal clarified that the I-Admin test applies only in cases where: (a) the interest that is being protected is the loss of the confidentiality of the information per se, and (b) the information has been taken by the defendant Copyright © 2024, Singapore Institute of Legal Education First element: information is confidential in nature Second element: conferred under circumstances importing an obligation of confidence Third element: unauthorised use or disclosure Basis of damages Cost of obtaining the information Open market value Capitalised royalties Licence fees (if the claimant would have licensed it in the first place) Lost profits (if the claimant would not have licenced it) Wrotham Park (as an alternative to injunction) Psychiatric injury (private individual only) Hurt feelings, mental distress, and loss of dignity (private individual only) Copyright © 2024, Singapore Institute of Legal Education Wrotham Park damages “I should first affirm the authority of the court to award Wrotham Park damages for breach of confidence. … [However, a] necessary implication of an award of such damages is that the defendants are regarded as having made an outright purchase of the confidential information. Once the damages are assessed and paid, the confidential information would belong to the defendants as if they had bought it in an agreement of sale…” - Lee Seiu Kin J, Clearlab at Copyright © 2024, Singapore Institute of Legal Education  Recap (a) Information confidential in nature (b) Information imparted in circumstances importing an obligation of confidence (c) Unauthorised use or disclosure (unless the I- Admin test applies, in which case the burden of proof for this limb is reversed) Notice Copyright © 2024, Singapore Institute of Legal Education. All rights reserved. The Course materials are developed by the Singapore Institute of Legal Education, based on the content, syllabus, and guidance provided by the Chief and Principal Examiners and their teams. No direct or indirect reproduction, publication, communication to the public, adaptation or any other use (that is prohibited and/or proscribed by copyright laws) of the Course materials in whole or in part in any form or medium is allowed without the written permission of the Singapore Institute of Legal Education. Part B Candidates should refer to the Code of Conduct for more information, particularly, the sections on conduct and behaviour, and the use of SILE resources.