Trade Secrets 2018: International David Chun Partner, Ropes & Gray LLP Mark D. Selwyn Partner, WilmerHale Kamrin MacKnight Chief Patent Counsel and Senior Director of Intellectual Property, Codexis Inc. Ronald Cheng Partner, O’Melveny & Myers LLP Moderator October 30, 2018

Agenda Countries and Regions: Risks and Enforcement Foreign Law Protecting Trade Secrets Considerations for Cross-Border Disputes (including language and culture, conflicts of laws) Responding to International Trade Secret Theft Situations Protections Against International Risk

Foreign Law Protecting Trade Secrets How active is criminal enforcement What legal and practical difficulties exist Are foreign courts capable of handling these cases Is there local protectionism Enforcement Trends How effective are damages What form of injunctive relief is available? Remedies

Countries and Regions: Risks and Enforcement European Union Trade Secrets Directive Asia Korea Japan China Risks: Made in China 2025, talent recruitment programs Enforcement: Civil / criminal U.S. Efforts to Enhance Overseas Enforcement Budapest Convention on Cybercrime IPLEC Program (Asia, Europe, South America, and Africa)

EU Trade Secrets Directive What It Is How It Compares With The U.S. Defense of Trade Secrets Act (DTSA) What It Means For You

EU Trade Secrets Directive: Background Passed by the European Union on June 8, 2016 Goal to provide minimum levels of protection for protecting trade secrets (undisclosed know-how and business information) across all EU Member States Historically, great variability in definition of trade secret and scope of trade secret protection across EU Member States Required to be implemented in national laws of EU Member States by June 9, 2018

EU Trade Secrets Directive: Key Provisions Article 2(1) defines a trade secret Three requirements: “it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question” “it has commercial value because it is secret” “it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret”

EU Trade Secrets Directive: Key Substantive Provisions Article 3 addresses when the acquisition, use, and disclosure of a trade secret is considered lawful. Article 4 addresses the unauthorized acquisition of a trade secret (Article 4(2)), the unauthorized use or disclosure of a trade secret (Article 4(3)), and the indirect acquisition of a trade secret (Article 4(4)). Article 5 addresses exceptions to the trade secret proscriptions of Article 4.

EU Trade Secrets Directive: Key Procedural Provisions Article 8 stipulates that the statute of limitations period shall not exceed six years. Article 9 mandates procedures to preserve the confidentiality in trade secrets litigation of trade secrets and documents recording them.

EU Trade Secrets Directive: Key Remedy Provisions Articles 10 and 11 set forth provisional and precautionary measures. Include preliminary injunctions and seizures of the suspected infringing goods. Articles 12 through 15 address remedies, including final injunctions, corrective measures, and damages.

Similarity of EU Trade Secrets Directive and DTSA Substantial overlap between EU Trade Secrets Directive and DTSA on major trade secrets topics Definition of trade secret Definition of misappropriation / unlawful acquisition, use, disclosure Reverse engineering

Areas of Divergence Between EU Trade Secrets Directive and DTSA Protections to whistleblowers Protections for exercising right to freedom of expression and information Seizure of goods as provisional remedy

“Reasonable Steps” To Keep Information Secret New requirement under EU law Objective inquiry Owner of trade secrets bears burden of proof

Considerations for Cross-Border Disputes Criminal disputes Service (In re Pangang Group Co., No. 17-72370 (9th Cir. Aug, 22, 2018) Civil enforcement. Transnational litigation may implicate the following issues: Language issues Discovery and privilege Data security regulation Local law/choice of law Internal investigations Confidentiality Forensic investigation / cellphones and devices

Responding to International Trade Secret Theft: Hypothetical Situations Situation 1. Law enforcement advises the company on a confidential basis that an employee is the target of a trade secrets investigation. Situation 2. The company receives information through a whistleblower hotline that an employee has been downloading technical information regarding a key technology under development and is planning to leave the company to start up a new enterprise overseas.

Protections against International Risk Third-party collaborators Employees Employees departing for competitors External threats (including data security) Sales of assets

Thank You / Questions