Trade secrets and protecting your IP | S2 EP6

Is a competitor using your trade secrets? Is a former employee misusing confidential information? This episode is all about trade secret rights and how to enforce them. Businesses can rely on trade secret law to protect almost anything, from secret recipes and manufacturing methods to business plans and customer lists. IP lawyers Elizabeth Williams, partner and trademark agent based in Calgary, and Allyson Whyte-Nowak, partner based in Toronto, join us for this conversation.

Special note: if you’re enjoying Disputed, vote for Ailsa Bloomer in the Changemakers category for the Canadian Lawyer Magazine’s Top 25 Most Influential Lawyers of 2022 award.

CPD credits: This episode qualifies for 0.65 hours of Substantive credit in Ontario and 0.66 hours of Substantive credit in British Columbia.

Transcript

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Transcript:
Andrew McCoomb  00:00
I'm picturing, you know, Tom Cruise dangling from the-- from the ceiling in the middle of the Pentagon trying to steal the NOC list. It-- it do you need to put it behind bulletproof glass to make sure it's kept secret or is there any other guidance you can give? 

Andrew McCoomb  00:23
Welcome to Disputed, a Norton Rose Fulbright podcast. This episode is about trade secrets and confidential information, that underrated form of IP protection that’s actually extraordinarily valuable since it can last longer than other forms of protection, like patents or copyright. Businesses can rely on trade secret law to protect almost anything. From the recipe for clamato juice, subject of one of the leading Supreme Court of Canada cases and FBI Foods and Cadbury Schweppes, to customer lists, methods of manufacture or business plans.

Ailsa Bloomer  00:54
So we start this discussion by looking at how to identify a trade secret that is capable of protection under Canadian law, focusing on practical steps that every business should take to protect their information. We then examine situations for enforcing this protection in those worst case scenarios. So, where you suspect that a competitor is using your trade secrets, or you suspect a departing employee is misusing stolen information. 

Andrew McCoomb  01:24
Our guests for this episode are IP lawyers, Elizabeth Williams and Allyson Whyte-Nowak. Elizabeth is a partner and trademark agent based in Calgary and her practice covers business and intellectual property law, advising clients in M&A transactions, licensing and portfolio management across many sectors, including retail technology, energy and sport. Elizabeth also provides litigation support and infringement and misappropriation actions.

Ailsa Bloomer  01:50
Allyson is an IP litigator whose practice includes trade secret litigation and strategic advice on the protection of confidential information. She has given trade secret advice to companies in connection with short-term futures trading strategies, modular home construction and driverless car technologies. 

Ailsa Bloomer  02:19
Allyson, Elizabeth, welcome to the podcast.

Elizabeth Williams  02:22
Happy to be with you today, thanks very much.

Allyson Whyte-Nowak  02:24
Hi, happy to be here.

Ailsa Bloomer  02:26
Okay, so let's start off with the basics. What do we mean when we talk about trade secrets, and how is a trade secret different from other forms of intellectual property?

Allyson Whyte-Nowak  02:37
In Canada, we tend to use confidential information and trade secrets, those two terms, pretty interchangeably. But really what we're talking about is any form of non-public information where its commercial value is derived from its secrecies.

Andrew McCoomb  02:54
So can you give us a bit of help on what that definition looks like in practice? Like how do you know if something is a trade secret?

Elizabeth Williams  03:01
So, you know, a lot of these rights and-- and determination, for example, as to what are the elements of a trade secret come from the common law. But we can also look to the Criminal Code or the Freedom of Information Act, for example. But they all do have the same elements, and the first and foremost is that the information will only be protected as trade secret if it is confidential. If it is truly held as a secret and that the owner has taken reasonable steps to maintain its secrecy. So, the most important essential element is that it's non-public information. And where there is access, this access needs to be limited and subjected to a higher duty of confidence. So-- so, you know, we're not just talking about confidential business information, we're-- we’re really talking about something more. So there's a greater degree to which the information is held as a secret and a lesser degree, if you will, to how it's disseminated to others. And this duty around confidentiality can be achieved in a number of different ways. The most obvious is through, you know, non-disclosure agreements or through employment agreements. But it's also in the way that an organization or a company treats it as secret. The other element that's really important, with respect to trade secret, is that it has to have value to those outside of the business who don't know it or who don't use it. And there needs to be some time, money and effort spent developing the information. And fourth, is that it's not, you know, readily replicated. So this is, you know, not like patent law where even if you're able to reverse engineer an invention without looking at that particular invention, but it's protected by patents, there you would still have an infringement. Whereas in trade secret, if you reverse engineer it, for example, that would be a defense to the misappropriation of that trade secret. So that secrecy is so important and whether it can be readily replicated or reverse engineered.

Ailsa Bloomer  05:33
Just a quick comment on that because I imagine some businesses will be in situations where the value of something as a trade secret might not become apparent until later down the line and so you may not have kept confidential information that now very much should be confidential. If you are in that situation, are you able to claim confidentiality over information that you haven't treated as confidential in the past, when its trade secret value subsequently becomes apparent?

Allyson Whyte-Nowak  06:02
I'd say no. The whole essence of trade secrets is that you have maintained it as secret and taken active steps to maintain it as secret. You know, under the-- we'll-- we’ll be talking about the Criminal Code provisions which came out in July 2020 and it's actually, you know, part of the definition of trade secret is that it is the subject of reasonable measures to protect it as confidential. So, it's really the essence of trade secrets that you've taken those steps so I don't think you can look back and recreate that.

Andrew McCoomb  06:36
So Elizabeth mentioned, starting with a kind of a common law approach, and-- and Allyson you've mentioned the Criminal Code, can you guys give us a sense of sort of what the statutory landscape is governing the relationships with trade secrets?

Allyson Whyte-Nowak  06:50
Yeah, Canada's a bit of an outlier. We don't have any statutes or regulations that are directed specifically at the protection enforcement of trade secrets. We do have some statutes that touch on it like the Freedom of Information Act and the Security of Information Act. And then a big change came about in July 2020 that I mentioned, and that's the Criminal Code provisions and those are new. And they really came about through the United States–Mexico–Canada Trade  Agreement which required Canada to amend the Criminal Code to include new offences related to the trade secrets. And so those provisions became effective July 1, 2020. We don't know to what effect that, you know, whether they've been used or not, we haven't seen any cases so far. But I believe that they'll provide a great deterrent value for the threat of trade secrets in Canada.

Ailsa Bloomer  07:50
I just want to explore the new Criminal Code provisions a little more. So as you say they came from NAFTA or, sorry, the successor to NAFTA which is the US–Mexico–Canada Agreement. My understanding is that they create an offense of knowingly obtaining trade secret information. The offense is only applicable to individuals and not corporations. So how-- I'd like your thoughts on how effective you think the Criminal Code provisions may be in a commercial setting at preventing misuse of trade secret information.

Elizabeth Williams  08:26
I'm not sure that we know, you know, exactly how it's going to be applied yet. We look at Section 391 in the Criminal Code, it provides that everyone that commits an offence who, by deceit, falsehood or other fraudulent means, knowingly obtains a trade secret or-- or communicates or makes available a trade secret. So when we look at that definition of everyone, maybe the application could be an individual or a corporation. That's kind of interesting because we haven't really seen how that might be applied yet. And what's interesting is that the punishment for committing this event could be severe. It could be a prison sentence up to a maximum of 14 years. But again, a person who independently creates the trade secret or reverse engineers the technology, for example, would not be criminally liable. What's also interesting is that for the new Criminal Code offenses, there's an additional hurdle of showing intention and deceit. So, it's not going to be enough to prove that a departing employee took a copy of your customer list. If the answer is, “whoops, I had this on my personal computer and I was working from home,” what you will need to show under the Criminal Code offense is that the employee intended to take it and acted deceitful or fraudulently in-- in doing so.

Allyson Whyte-Nowak  10:02
I focus on that final element a lot when I'm acting for a company that's been accused of taking a trade secret. It's one thing to have it in your possession, but if you haven't used it, then the plaintiff won't be able to make out that final element of the cause of action. So, it's really important when you're counseling someone who's been accused, not to panic if they have a new employee has brought over something they shouldn't have from their former employer. Just send it back. If you haven't used it, then you're okay. I worked on a case related to short-term futures trading strategies and a new employer was suspicious about how successful their new employee was with his trading. And they got nervous enough to contact his former employer and sure enough, he had taken over a proprietary strategy they had developed. And the case was easily wrapped up because they knew they couldn't use it. And without having used it, there was no problem on their side. 

Ailsa Bloomer  11:11
And with the Criminal Code provisions, if you are the manager of the new employee and-- that you suspect that ha-- has this trade secret information, do you run the risk of having individual criminal liability too if you are engaging with that new employee with regards to use of this information?

Allyson Whyte-Nowak  11:30
I’d say yes. The Criminal Code provisions refer to the taking in the obtainment. But again, it's all premised on intentional, deceitful, fraudulent taking. So you have to meet that hurdle.

Elizabeth Williams  11:44
But I think your-- your question around who it applies to, I mean, it could be interpreted to be individuals or corporations. And I think, you know, looking to US case law, there, you know, there's similar provisions in the Criminal Code in the US, helps us to assess how this may play out in Canada. And one of the main areas is what Allyson mentioned which is this reasonable efforts to keep it a secret. So, you know, going back to your question, if the genie is out of the bottle, is it a trade secret? And the reality is-- is that it won't be. And so, US courts have-- have been looking at the extent to which the owner took steps to maintain that information as confidential and what are those reasonable effort requirements. So, I think that'll be really interesting to see how that plays out in Canada.

Ailsa Bloomer  12:38
You mentioned the US and how it's possible that Canada may be looking to how the US has enforced their criminal provisions and rolling out this regime. So on that point, let's talk about the comparison with our neighbour. So Canada's IP regimes are generally consistent with the US’s, but that's not necessarily the case with the trade when it comes to trade secrets. So how does Canada's legal regime compare with the US when it comes to trade secret enforcement and protection?

Allyson Whyte-Nowak  13:05
That's right, we're generally pretty much the same when it comes to IP regimes but trade secrets is definitely the outlier. The US has both state and federal laws and so you have a choice where to sue. There was a big development that came in 2016 with the Federal Defend Trade Secrets Act. And I'd even throw in the UK. They had a development in 2018. Their trade secret law was largely common law based and in fact, our case law derives a lot from those initial English cases like Cocoa Engineering and Saltman. But in 2018, the UK implemented regulations in answer to European Union Trade Secrets Directive. And so they've somewhat harmonized their treatment of trade secrets with the rest of Europe. So, that leaves Canada as the outlier without a Uniform Trade Secrets Act, no federal legislation. It has implications for when you go to sue in Canada. So although we have civil liability, still, it's odd to have IP rights that you can't couple with other IP rights in the same lawsuit. So, let me give you an example, say you have something, a document that has a drawing-- a drawing of a machine, you might be able to protect it through copyright law and you can bring that action both in the federal court under the Copyright Act, which gives the federal court jurisdiction, or there's concurrent jurisdiction so you can sue in a provincial Superior Court. When it comes to trade secrets, because you could argue that that drawing is a trade secret that you can protect through a breach of confidence action, you don't have a federal act that would ground jurisdiction in the federal court and you have to sue in the Superior Court. So you might have two actions, one suing for copyright in the federal court, where you believe perhaps that they have expertise that you want to draw on, and you'd have to bring your trade secret case in the Superior Court. So not very judicially economic and so that calls for a Federal Trade Secret Act, in my view. 

Elizabeth Williams  15:20
And-- and the other interesting piece about what Allyson said about having to bring two separate actions is with trade secrets, time is of the essence. So to the extent that you have a breach of confidence of really that secret information that is so valuable for your company, the action in Superior Court is likely to take longer. And through the federal court, it's an IP specialist court, but there is also a goal of the federal court to try to move through actions fairly quickly. And so now you may have two different actions going at two different speeds and the issue with the Superior Court is the length of time that it can take. And now your trade secret is really out there for a longer period of time which can be very detrimental to your business.

Andrew McCoomb  16:15
And you've got the risk of inconsistent rulings and findings from two different courts operating in parallel. And all of that adds to, I guess, a defendant’s toolkit in thinking about how they want to respond to the various things in front of you. You don't want actions to become-- to be decided on a procedural basis when it can be avoided, but it seems like you're arming defendants with a whole bunch of extra ammunition that they can work with in these cases, it's an interesting problem. It's also interesting to hear the extent to which our criminal law is-- is maybe being brought along to comply with an international expectation, because that doesn't happen very often, and you wonder why jumping in with Criminal Code sanctions is a necessary measure. It's-- it's just curious-- it's curious to wonder what kind of behavior they're targeting-- targeting with that. But to Allyson's comment and Elizabeth's comments earlier, it'll be some time before we figure out how that's all going to look, I suppose, in practice. So going again to the question of protecting trade secrets in practice. So I'm an inventor, you know, I-- I come up with something, I think it's a trade secret, how do I know whether I can protect that? If the first answer is talk to a very intelligent intellectual property lawyer, you can layer that in as the first response. 

Elizabeth Williams  17:33
I do think, you know, what's very important and, you know, what Allyson and I will have seen over and over again is that one size does not fit all. So, each business and the kind of information and, I mean that's the real benefit of trade secrets is it can be a whole range of information which I think is what's very unique and nimble about trade secrets as compared to, for example, patents where you may not meet the novelty standard. First and foremost, is looking at the business and saying, what are the crown jewels? And I think a lot of businesses may not even appreciate that it could be protected through trade secret. So for example, a formula, a design, customer lists, marketing plans, to the extent that it's been maintained as secret. And so, I think that's something that's very unique is to look and say, you know, what are our crown jewels and-- and have we maintained it as secret? And if you have, then maybe you want to be looking and saying, okay, well, what are additional enforcement and-- and these reasonable measures that we put around this? And that can be a whole host of practical measures starting from NDAs. Ensuring that your NDAs, again, are very specific around this information. So not using those really broad boilerplate descriptions of what is confidential information. If you have crown jewels, identify what that is so that those that you're disclosing to, know what it is. And when we say disclosing, you may not have to describe in detail exactly what that trade secret is. So, for example, if we're thinking of the Coke formula, you know, not listing it out, but identifying what it is and then identifying what the expectations on that employee or that individual are, around maintaining it as-- as secret. And of course, there's a whole host of other practical ways such as encryption, password protection, maintaining that trade secret and segregating it. I mean, the Coca Cola recipe, as we understand, has been maintained in a vault since the 1880s. Not the same one, but we now know it's being held in a vault at the world headquarters of Coca Cola in Atlanta and very few employees would have access to it and that would really be the only, you know, executives, for example. So that's sort of an extreme example.

Allyson Whyte-Nowak  20:12
I’d answer that question by saying the measures you need to take to maintain secrecy are really going to be guided by the nature of the information. So, if it's something that is on a computer, then you're going to want to encrypt. If it's, you know, on a piece of paper, maybe like the Coca Cola recipe, you keep it in a vault. I think it's going to be-- you're going to be guided by the nature of the information. And then the value of the information is going to tell you what additional measures you should be taking, particularly when it comes to access. So, there's no point in having recipe if nobody can see it in order to carry it out. So then what measures are you going to impose on people who do get that access, in order to impose obligations of confidence on them, that you can then rely on to show the court that you've taken steps to maintain it as secret? 

Ailsa Bloomer  21:07
And what about in the context of your industry, specifically in industry customs? And I'm talking about the Latin Minerals case which is the mining joint venture dispute from the 80s where one company came into possession of information about a particular mining site through the joint venture negotiations. I think there was an argument raised in that, that there is a tacit understanding in this industry, if you come into possession of information, that you won't misuse it. And so there was no agreement around that, it was just generally a custom in that industry. And how likely are those arguments going to stand up in court, when we're talking about employing reasonable measures for protection? Is it sufficient to rely on an industry custom?

Allyson Whyte-Nowak  21:51
I'd say that's risky. That may have, you know, held the day back in-- in the case that date-- dates back that long, but today, you know, in the era of nondisclosure agreements, confidentiality agreements, I wouldn't risk that. But for sure the court would consider custom. But then you've also got that additional evidentiary burden of bringing proof of that custom and showing the court that it is widely held and accepted within the industry.

Elizabeth Williams  22:19
Just as sort of a practical piece of advice for our listeners, is that standard provision in an NDA that says you should know if the information is confidential and to the extent that you believe it to be confidential then you must maintain it in confidence. We recommend that you ditch that kind of language and be very specific about what is the information that is confidential. But this idea that people should just know what information is confidential versus what isn't-- is not very helpful in a court case where you're really trying to point to the fact that, yes, that individual or that employee knew that that information was to be maintained in confidence.

Allyson Whyte-Nowak  23:10
Well it's a good time to mention one of the really important counter polls in this area, and that is, when these questions come up in the employment law context, the courts have a real problem preventing employees from using know-how, and know-how has to be distinguished from trade secrets and confidential information. If there are techniques that mechanics use in a business, then the court isn't going to prevent them from being able to use their skill and their know-how and-- to earn a livelihood. And so that's one of the push and pulls of trade secret laws, and you see it play out mostly when it comes to the enforcement of restrictive covenants, because courts want to protect workers and their ability to earn a livelihood.

Andrew McCoomb  24:04
You guys have covered off some of the challenges that a-- a potential plaintiff in a trade secret case is going to run into trying to protect their rights. But we haven't touched as much on the question of commercial value, or on the ease of replication. Is there any court guidance on how those questions can play out when you're trying to defend or bring a-- a trade secret enforcement case?

Allyson Whyte-Nowak  24:28
No, I think one of the-- the leading cases in Canada is a case called FBI Foods, and it relates to the recipe for clamato  juice. And, ultimately, when the court determined that there had been a taking of a trade secret or confidential information, they had to look at remedies and one of the things that they looked at was how special and how valuable that recipe was. And in that case, the court determined that it wasn't very special, and that it could have been replicated by another company without the use of confidential information, within 12 months. And so it informed the way the court looked at a remedy. And the value was-- was really critical. That's called springboarding. When you use confidential information and you either recreate the trade secret, or sometimes people use confidential information to improve on a trade secret, and the court will look at the head start that you got from using the confidential information. And that's to be distinguished from reverse engineering, which you’re entitled to do and is a full defense to the theft of a trade secret.

Ailsa Bloomer  25:50
Springboarding-- it just sounds inherently difficult to prove. 

Allyson Whyte-Nowak  25:55
That's the-- the hardest element of proving a case of theft of or misappropriation of trade secrets, and the other term for it is a breach of confidence action, is proving that element of misuse. Sometimes you do it looking at striking similarities, you know, how could you have arrived at the same process other than through using our confidential information to do it. Sometimes you are able to point to deceptive activities. Take for example, an employee who's been let go and on their way out the door they download various documents, including confidential customer lists. And so, if they recreate a customer list, then you might be able to get the court to draw the inference they used the stolen customer list to recreate it. But again, sometimes it goes back to how valuable and complicated that information is. If you can easily just look up in the Yellow Pages, a list of clients or suppliers in a particular industry, then the court isn't going to draw that inference. Or if they do draw the inference, they're going to not provide much of a remedy because there's so little value in the effort to arrive at that trade secret.

Elizabeth Williams  27:19
Allyson and I have heard that sort of similar tale over and over again. You know, Company X operates in a very technical space. They have a lot of value in their market with respect to some information that they have. They have an employee who leaves or-- or is terminated, starts their own company, or walks across the street and it looks very similar, and competes with them. What are some of the red flags that-- that we identify to say well do we even have a situation, as Allyson said, of springboarding? Or where they may have misappropriated that trade secret. And again we're looking at whether that information is public through a Google search or looking through trade journals or-- or documents in-- in that space to determine is that information actually trade secret and did they use it to-- to springboard to put themselves in a position that they wouldn't have been, but using that confidential or trade secret information? And then the second watch out that we look for is, is the information that you're claiming is trade secret, too vague? There’s been case law that says, you know, you can't enforce rights in respect of information if it's too vague. So, for example, a negotiating strategy. That may not be trade secret and too vague to enforce around that. So really important to look to determine at the outset, do we even have a trade secret here? And those are, you know, a couple of measures that we employ to take a look at that.

Andrew McCoomb  29:06
It feels like that approach cuts at the test of a trade secret, maybe on a bunch of different prongs right? That affects the replicability of it, that affects the commercial value of it, that affects maybe whether it was even secret in the first place. So it's interesting to take that commercial reality approach. But we've touched on another question, is there a threshold? Is there a bright line test for how much work you need to put into protecting your trade secret to make sure that it's safe? Is there any other guidance you can give?

Allyson Whyte-Nowak  29:37
Well I'd say that you're guided by the value of the information at stake. So they say, it was reported in the Associated Press that the original recipe for Kentucky Fried Chicken’s locked up in a digital safe, encased in two feet of concrete, monitored 24 hours a day by video and motion detection, and that they source the spices for their secret recipe from different manufacturers so no one supplier has the complete list. And, you know, maybe that's what it takes for something like the KFC recipe to have been kept secret this many years. And so, those are the steps that are appropriate for that type of information. So you really need to be guided by the value of the information and the value to your company. But, I often take clients to case law and decisions and walk them through what the court found in other cases. Oh, look, they use password protection, they used encryption. And I'd say the other thing you've got to be careful of, that we warn clients, is to mind the gaps. It's one thing to lock up obligations of confidence with your employees. And you've got the right restrictive covenants, you've got confidentiality policies. But if you allow mechanics to come in and service your machines and they have full access to the machine and could recreate it by the inner mechanics of what they're working on to fix it, and you haven't subjected them to obligations of confidence, you've got a gap and that gap will be deadly. 

Elizabeth Williams  31:20
And the case law says it has to amount to more than mere privacy with which an ordinary business is carried on. So again, really the point that Allyson and I are zeroing in on is, you have to hone in on what you want to protect and what is reasonable under the circumstances to maintain it as secrecy. You know, our clients hate sort of that lawyer speak of reasonable in the circumstances but again, this one size doesn't fit all. And a theme that we're sort of repeating over and over, which is, avoid the boilerplate. Avoid trying to protect all of the information in the same way, and really hone in if you have something that's trade secret. Then make sure what you do to try to protect that, is special and taking measures to ensure that you can substantiate how you've protected it.

Ailsa Bloomer  32:23
Okay, and I want to move on now to talk a little bit about remedies and, so we mentioned really honing in on what is your trade secret and, I guess, part of that is also looking at the flip side, okay, well, what position would I be in if this was stolen or misused? And when you're in that situation, what remedy is going to be appropriate to address the detriment that you are going to have to prove? So, can we talk a bit about the scope of remedies available for misuse of trade secrets and what the courts have found to be appropriate?

Allyson Whyte-Nowak  33:00
In a confidence case, you're going to have to prove your damages, just like any other case, and that really amounts to that basic formula of, what was the financial loss that you suffered but for the wrongful act of the taking of your trade secret? And, so you don't get any shortcuts particularly because there are no statutes that relate to trade secrets there, you know, this is a regular damages case. In the FBI Foods case, the Supreme Court case we referred to earlier, you know, one of the things the court said was we're sending this back for reference, and you need to factor in the-- the not so special character of the trade secret at issue. And you need to, for example, prove that but for the competitor, having come on the market with a copycat clamato juice, you would have made those sales, and that those sales wouldn't have gone to some other manufacturer. 

Ailsa Bloomer  34:07
So it's still coming at it from a common law damages perspective as opposed to, a restitutionary perspective. So it's not as if, in the FBI Foods case, there was a ability for them to have a constructive trust over the profits that the defendant had made with the alleged misuse.

Allyson Whyte-Nowak  34:27
Depending on the type of property you could claim a constructive trust. There are other remedies you could claim. I will say this about trade secrets, proving detriment is easier. The value of the loss is harder to prove, but the-- the actual detriment to a trade secret owner is made out by virtue of the nature of the trade secret, and the fact that once its secrecy is lost, once it's been misused, the value of the trade secret is lost. And so, the court will quickly understand detriment, what's harder is putting a value on that loss. And one of the big things you can do in trade secret law is trace your trade secret into the hands of even innocent third parties. So although you can't get damages from a new employer who's hired somebody who brought over your company's secret formula or secret strategy, you can stop them from using it, you do have the ability to do that.

Andrew McCoomb  35:33
So we've already identified that the Criminal Code piece is a place where, you know, watch this space, right? What are the other trends that you guys see in the trade secret space or emerging issues looking forward?

Allyson Whyte-Nowak  35:47
There's definitely a big push for federal trade secret legislation. You know, when you see how the UK and the United States laws have developed, there is a big push in Canada. And I think it's important to keep in step and have similarities in our IP regimes, and it has the benefit of providing certainty to businesses and employees in Canada. 

Elizabeth Williams  36:13
Yeah, I-- I completely agree. Even our-- some of our IP legislation has been slow to evolve over time in-- in Canada, that-- that's sort of a trend. But Canada is definitely a hub for innovation in the world. We have a very strong tech ecosystem, everything from renewable energy technologies, AI, pharmaceuticals and we also have a very deep talent pool here. And so, our government is looking at, how do we ensure that we protect that investment? And how do we attract additional investment into Canada? And one of those ways is ensuring that we are protecting that innovation. So, like Allyson said, I think the space to watch is-- is definitely passing, you know, some kind of Federal Trade Secret Act to continue to protect that investment and attract new innovation investment in Canada.

Allyson Whyte-Nowak  37:08
And I'd add that Canada's pushed along somewhat by the United States. Every year, the Office of the United States Trade Representative issues what they call a Special 301 report, and they list countries as a watch list for how they do in protecting IP rights. And Canada has been on the watch list, and one of the reasons is because of the trade secret protection laws. Just in 2021, that 301 report highlighted that new Criminal Code provision as being the most significant step forward taken by Canada. And they-- they continue to refer to how Canada needs more expansive trade secret protection.

Ailsa Bloomer  37:59
That's great. Thank you, thank you very much.

Andrew McCoomb  38:01
And before we sign off, I just wanted to give a quick plug for Ailsa. So Ailsa, the co-host of this podcast, the founder of this podcast, the originator of this whole exercise, is nominated for a-- an award for Top 25 Most Influential Lawyers in Canada. She's nominated in the changemakers category. It's very exciting, but very well-deserved this nomination because she's built something really cool, really compelling here. She's delivering CPD to listeners, she's delivering interesting conversations to listeners and while you folks listening at home can't necessarily tell because things come off, seeming pretty seamless, Ailsa puts in a tremendous amount of work with our production team to get this thing on the rails and does a great job with it. So, for me to you and from this podcast team, my little plug, if you can, find the link for voting for Top 25 Most Influential Lawyers in Canada, make it to the change makers page, Ailsa’s right there. She's the first name in the alphabetical list. Go ahead, please give her a vote. We're very proud of the work that she's done on this podcast and we think it's a deserving recognition to be nominated. So thank you Ailsa, thank you to our listeners for hearing us out on that and we will speak to you soon.

Ailsa Bloomer  39:31
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