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Further protection options

The strategy of secrecy serves to protect against the outflow of know-how or business and trade secrets. It should be considered when third parties have no possibility of drawing conclusions about process steps or product compositions and therefore these cannot be imitated or copied.

A consistent and comprehensive strategy for confidentiality requires a holistic approach and a sustainable concept that includes processes and measures. For this reason, the term "secrecy process" is often used.

Secrecy can also be used for a limited period of time - for example, until the registration and/or publication of applications for property rights such as patents.

What are business and trade secrets?

Trade secrets are primarily technical know-how (e.g. specifications, manufacturing processes, test procedures, capacities or information on products under development etc. and also development/research concepts or design drawings or sketches), but also formulations of chemical products, properties of product components, source code of software programs, algorithms and IT system architectures or even metadata. Content data or Artificial Intelligence (AI) data analyses as well can be regarded as trade secrets.

Trade secrets generally include all non-technical information on suppliers or customers (in particular lists, CRM data and data on consumer behavior as well as personal data, offers, contracts, conditions) or internal information such as advertising strategies and concepts, calculation bases or transport/logistics concepts. Furthermore, sales strategies and considerations regarding conditions of sales partnerships, market strategies and market analyses as well as joint venture considerations, offers and contracts.

The protection of trade and business secrets is regulated in the Federal Act against Unfair Competition (UWG). There, the EU 2019 "Know-How Directive" (EU Directive 2016/943) was also implemented in §§ 26a-26j UWG (in force since 29.1.2019).


Legal measures

These include all contractual agreements with employees, suppliers and cooperation partners that oblige them to maintain confidentiality regarding certain information.

Technical and organizational measures

In a confidentiality process, technical measures must also be taken to prevent or impede access to electronic documents or files in paper form.

Examples include

  • Physical access to control rooms or filing cabinets
  • Visual protection measures
  • Authorizations for server areas or specific networks

Considerations for developing secrecy measures

The following approaches should help you incorporate secrecy as a form of protection into your IP strategy:

  • Consider company policy and appropriateness (e.g., type of secret, industry, company size)
  • Keep comprehensible documentation (e.g. for third parties such as courts/experts)
  • Observe the state of the art (especially during meetings, e.g. ban on cell phones, no photos taken with cell phone cameras)
  • Disclosure of trade secrets only to selected trusted people
  • Establish organizational, technical and legal measures (e.g., control access, contractual clauses)
  • Maintain level of secrecy: regularly review measures, clarify secrecy character 

Defensive publication is the strategic publication of an invention in order to elevate it to the state of the art. This prevents a possible application for a protective right and makes the invention quasi public domain. This strategy is often used when

  • an invention is only a further development or a manageable improvement of a process or product
  • no enforceability of property rights is possible
  • the prospect of obtaining an IP right is not very good
  • no protective right is sought for strategic or cost reasons.

Defensive publications are becoming increasingly popular because they can be used as a strategic tool or for marketing purposes.

There are no formal requirements for a defensive publication - however, at least the following information should be provided:

  • Date of publication
  • Key features of the invention (depth of information)
  • Author or inventor

A publication in the sense of patent law is an oral or written disclosure which is made available to an indefinite and unrestricted circle of participants in principle.     

In the Austrian Patent Act, novelty is defined in § 3 (1) as follows:   

An invention is considered new if it does not belong to the prior art. Prior art is everything that has been made available to the public before the priority date of the application by written or oral description, by use or in any other way.

Examples of possible publications:

  • Publication in a (technical) journal
  • Presentation in the context of a public lecture
  • Description of the technology (invention) in a folder made available to the public. The folder can, for example, be displayed in the entrance area of a company (open to the public Mon.-Fri., 8.00-13.00). However, verification of one’s proceedings, if required necessitates the availability of independent witnesses. Also, the folder must be displayed for an appropriate period of time. 
  • Registration of a utility model that one drafts independently (associated with costs such as official fees)

Copyright protects the concrete expression of a work or product. Included in the protection are classical works of literature (incl. software), sound art, visual arts and film art.

In Austria, it is regulated by the Copyright Act.

The author of a work is the natural person who created it (creator principle). Protection thus arises from the creation of a work. Authors can also be more than one person.

Since copyright is part of intellectual property law, the principle of territoriality applies: each country enacts its own regulations for the protection of intellectual achievements; as a result, there are also different levels of protection.

In order to minimize the risk of encroaching on the rights of third parties, one should regularly conduct one's own or professional IP searches and determine the legal status of the most pertinent documents with an older priority date. It should be noted that many applications are not published until about 18 months after the first filing date (priority date) and are not included in the search databases before then.

It can be advantageous to continuously build up in-depth knowledge of the state of the art in this way, particularly in the area of R&D, as this also benefits one's own developments.

If a process is found for which there is no (longer any) valid property right (protection already expired, technical publication without application), this can be used without risk. Subsequent property rights could also be restricted, if necessary, by means of nullity proceedings.

A complete Freedom to Operate (FtO) analysis is a highly complex and delicate consulting process which should definitely be accompanied by experts (e.g. patent attorney). The basis of a Freedom to Operate analysis is an extensive, comprehensive search for the status of various property rights, name identity according to the company register, verification of domain names, etc. The procedure should be country-specific.

This should be done on a country-specific basis and the relevant determined results should be critically analyzed and compared with the company's own project plans, taking into account the respective legal status.

If this analysis reveals that the planned project encroaches on the rights of third parties, appropriate licensing agreements should be concluded with the rights holders, if possible in advance of project implementation. The license fees in the early stages of a project are very likely to be less expensive than in infringement or encroachment litigation.


In collaborations with companies or research, submissions should always be subject to a contractual agreement. A collaborative research agreement should therefore in any case encompass the contractual regulation of the following elements in advance:

  • Foreground & Background IP (Who contributes what knowledge/IP?).
  • Take-up obligation (Who may/must take up whose invention shares?)
  • Ownership of a joint invention (To whom are invention shares to be assigned?)
  • Compensation of inventors (Who defines, who pays and who bears the costs?)
  • Obligation to register property rights (Does such an obligation exist? By whom?)
  • Possibility of publication (Who has rights to it and under what conditions?)
  • Property right strategy (Who defines it?)
  • Assumption of costs of protective right applications (Who assumes the costs?)
  • Enforcement right/obligation (What is the procedure in the case of an infringement? Who enforces the rights? What are the obligations of the others and who bears the costs)?
  • Use of the invention (Who may use the invention, under which conditions and with which restrictions?)
  • Licensing and sublicensing law and related obligations (Who may license to whom and with what rights?)
  • Contract duration and succession regulations (What happens in 10 years?)

When working with external service providers (contractors, freelancers, diploma students, dissertation students, etc.), contractually secure the exclusive rights of use, modification rights, etc. to the commissioned works. This applies in particular to creative works that are subject to copyright. Examples include the development of software or the design of logos.

An essential cornerstone of an IP strategy is contractual agreements with cooperation partners, suppliers or customers. This includes, for example, service agreements, non-disclosure agreements or cooperation agreements or agreements on the handling of IP in R&D projects.

The documentation of research and development activities is essential in order to be able to defend results against third parties or to be able to present the innovation activities in a comprehensible manner in the event of legal disputes. This requires appropriate processes and systems.

A good documentation system that documents developments and makes changes easily traceable is essential, especially if the company's IP strategy focuses on secrecy. On the one hand, this documentation enables access to the know-how of key developers in the event of a departure, illness or accident, but it can also provide evidence of "prior use" or "unlawful taking" (e.g. an employee registers a service invention in his or her own name without the employer's consent) in the event of a legal dispute.

The documentation makes it easier to continue to implement one's own developments in the existing production and sales area despite any third-party patents that may be granted at a later date (prior use).   

Special attention should be paid to keeping this sensitive company data secret.

In the documentation system, all documents should be provided with a unique version number, the signature of the inventor(s) and the date, in order to be able to prove the time of individual development steps.

In the case of electronic documentation, or in the case of “key developments” we recommend that a printout of the development documents is made periodically or in the case of "key developments", and that the most important development steps are filed in a chronologically structured manner (numbered pages) with the date and signature of the inventor and/or the inventors.

In addition, handwritten, continuous records are suitable, for example in bound business books (similar to laboratory books in the pharmaceutical industry).

Documentation in electronic form alone - possibilities of manipulation with electronic data - is usually not sufficient to provide clear evidence of developments (who, what, when,...) in court.

When a company establishes the process for in-house documentation, then coordination regarding legal security with the company's legal counsel is consistently useful.