(1) The knowledge inherent in the trade secret came to him during his work for the owner of the trade secret and this knowledge became part of his general professional skills;
- The claim should be rejected.
This section is certainly not intended to allow the theft of a trade secret. The typical case to which the protection applies is in a situation in which an employee develops the trade secret in the course of his work, but by virtue of the employment relationship, the secret is owned by his employer.
The case before us is completely different. Here the parties entered into a contractual contract, and one of them stole the secret from his friend when he did not develop it himself. Certainly, there is no justification that can establish a defense in such a case by virtue of the laws of commercial torts.
- And even if we had remained in the framework of an employment relationship, as the defendants claim them, it would not have been of any use.
The scholar Miguel Deutsch referred to this defense and noted that it does not apply when the trade secret is used during the period of employment, and this is the case in our case. The purpose of the protection is to enable the employee to make a living or to promote employee mobility, and this purpose is irrelevant when it comes to the use of a secret during the period of employment (ibid., at p. 721, and at 116).
In his book (at p. 718, note 100), Deutsch referred to the Supreme Court's ruling Other Municipal Applications 1142/92 and Vargus in the Tax Appeal v. Carmax Ltd., IsrSC 51(3) 421 (1997) (hereinafter: the Vargus case), which was indeed given before the enactment of the law, but it was not a miracle even after it. Thus it was ruled there (at p. 440) by the Honorable Justice Strasberg-Cohen:
As long as the employment relationship continues, the employee cannot make use of the employer's business information or transfer it to others. However, in general, when the employment relationship has ended, an employee is entitled to make use of the personal skills and knowledge he has acquired in connection with his work in order to derive personal benefit and compete with his employer, provided that he does not use the employer's confidential information that amounts to a breach of a duty of trust or a breach of the duty to act in good faith.