Let me try to set the analytical stage. The territoriality of IP rights is as about as bedrock a notion as we have in the IP world. Whether through registration, as in the case of patents, or mutual treaty obligations, in the case of copyright, the basic principle is that an IP right is ultimately valid only on a national basis. Whatever the jurisictional unit, it is bounded and defined; there is no such thing as an internationally valid IP right. This focus on the territoriality of the IP right carries with it a clear implication for enforcement. In a word, enforcement is territorial. Thus, with respect to enforcement, there needs to be a marrage of convenience, where the act of alleged infringment is mated with a territory in which the IP right is valid and enforceable. A French patent is of no use in the face of an act of infringement in the UK. The concept is so basic that we often take it for granted.
And so to (some) of this Kat's questions:
1. Can Company ABC bring suit against all three defendants in a single jurisdiction or must it file separate law suits gainst the other three companies in Country B, Country C and Country D, respectively?Any thoughts?
2. As between Company ABC and Company XYZ, does Company ABC only have a contract claim against Company XYZ (to be determined under the law of Country A), or does it also have a property-right claim for misappropriation of the trade secret?
3. If so, what should be the governing law regarding the property-right claim between them?
4 Does it matter that the trade secret was created through a collaboration by employes of Company ABC located in multiple jurisdictions?
5. Does it matter that the unauthorized disclosure was made in Country T?
6. Does it matter that the law of Country D (the country of one of the employeees who developed the method) explicitly excludes trade secret protection for this kind of method?
7. Does it matter that only Country ABC, from among the four jurisdictions, has a specific statute that governs misappropriation of a trade secret? (In the other three jurisdictions, trade secrets are recognized as enforceable legal right under judicial rulings, but are protected under a combination of rights such as contract, fiduciary duty, unfair competition and employer-employee relations.)
8. More generally, should questions of enforceability, especially in a multi-jurisdictional context, impact on the decision whether or not to seek a patent, as opposed to relying on trade secret, protection?