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Austria

Case law on Trade Secrets in Austria

Relevant topics related to the 2016 Trade Secret Directive (EU 2016/943)

Table of contents
  1.  Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)
  2.  Reverse Engineering - e.g. art. 3(1)(b)
  3.  Infringing products - e.g. art. 2(4) and 4(5)
  4.  The (IP-like) catalogue of remedies - e.g. art. 10 and 12
  5.  Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5
  6.  Secrecy in court proceedings (“confidentiality club”) - art. 9
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1. Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)

There has been no relevant case law so far regarding the requirements to undertake reasonable steps to keep the information secret.

2. Reverse Engineering - e.g. art. 3(1)(b)

Supreme Court (“Oberster Gerichtshof” [OGH]) 4 O b188/20f: The possibility of reverse engineering requiring a great deal of effort does not automatically render a trade secret “readily accessible”. Information is only then readily accessible if a person in the relevant public can obtain it by otherwise fair means without considerable effort and expenditure of time, effort, expense and/or skill.

3. Infringing products - e.g. art. 2(4) and 4(5)

Higher Regional Court Vienna (“Oberlandesgericht Wien” [OLG]) 5 R 39/20x: Infringing products are only those “whose conception, features, functionality, manufacturing process or marketing are based to a significant extent on unlawfully acquired, used or disclosed trade secrets” (Section 26b par 4 Unfair Competition Code). Such infringing products were not at hand in this case, as the defendants used the plaintiff’s construction plans only as a template for three simple components, which were integrated into a whole new product consisting of further parts.

4. The (IP-like) catalogue of remedies - e.g. art. 10 and 12

OLG 5 R 39/20x: The right to choose between the claims for reasonable compensation, damages or loss of profits must be exercised in the claim initiating the proceedings. Only the specific amount claimed can be reserved on the basis of a claim for rendering of accounts for a later point in the proceedings.

5. Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5

OGH 4 Ob 182/20y: The author of a source code, which was qualified as a trade secret, granted a third company an exclusive right to use the source code. This license to use the trade secret is, in the court’s view, connected with the obligation of the author not to disclose the source code (as a trade secret), since the disclosure of the source code would drastically devalue the software. The plaintiff, as the current owner of the source code, can invoke this duty of confidentiality, especially since the defendant agreed that the third party may freely dispose of the software, including the source code, vis-à-vis third parties. Since the author threatened to disclose the source code online, the plaintiff had a valid claim to prohibit the threatened unlawful infringement of his trade secret by way of disclosure.

6. Secrecy in court proceedings (“confidentiality club”) - art. 9

OGH 9 Ob A 7/20z: Section 26h Unfair Competition Code provides that the information which the plaintiff claims to be a trade secret may initially be disclosed in the proceedings only to the extent that it is indispensable in order to credibly demonstrate the existence of the prerequisites of a trade secret as well as its infringement. However, this provision does not change the fundamental burden of assertion of the party invoking the existence of a trade secret. A list, which only consists of generic terms (“customer lists, plans, supplier conditions as well as internal company passwords, supplier accesses, etc.”) is not sufficient for the court to be able to assess whether a trade secret exists that meets the legal requirements.

OGH 2 Ob 68/22x: The procedural rules on the protection of trade secrets, which are applicable in civil proceedings regarding the unlawful acquisition, use and disclosure of trade secrets, do not extend to other civil proceedings.