The typical case of theft of a trade secret in accordance with the law follows the accepted approach in the Anglo-American world, according to which "the owner of the secret must base his claim on the fact that the secret was taken by an illegal or unfair act" (Miguel Deutsch, Commercial Torts and Trade Secrets, 333-334 (2002) (hereinafter: Deutsch)).
- The elements of theft are clear, but the ability to substantiate it evidentially is challenging. The defendant can always claim that he did not steal anything. that his conduct is the product of his independent work, or that he carried out as a result of the public information that existed or was lawfully exposed to it. And of course, the burden of establishing the claim of theft rests with the plaintiff, who claims it. It will be difficult to "prove directly that the defendant is using his secret and that he did not disclose the secret independently or by way of re-engineering" (Oren Reches, Trade Secrets and Restriction of Occupation 594 (Volume 1; 1999) (hereinafter: Reches)). It should be remembered that the plaintiff usually walks in a reality of evidentiary inferiority. After all, in the usual case, he does not have access to the evidentiary foundation that underlies the defendant's conduct. The one who takes out the evidence from his friend is obliged to prove it, and when we are dealing with a claim of theft, the evidentiary burden is particularly heavy.
- Against this background, Section 10 to the law and states "Presumption of use":
- Presumption of Use
The defendant is presumed to have used the trade secret owned by the plaintiff, if the following two were fulfilled:
(1) The trade secret came to the defendant's attention or had access to it;
(2) The information used by the defendant is substantially similar to the information that bears the trade secret [emphases added].
This presumption also stems from the comparative law, according to which "similarities between products and the defendant's access to information can indicate that the defendant made use of the trade secret" (Reches, at p. 595). This is therefore an "important evidentiary mitigation" (Deutsch, at p. 689).
49. It seems that the presumption of use creates a proper balance between the conflicting procedural burdens. The starting point is that the fact that a plaintiff claims that his secrets have been stolen is not enough to obligate the defendant to provide details about his conduct and the developments he has developed. As far as he is concerned, this is commercially sensitive information, and a significant evidentiary basis is required in order to impose an obligation on the defendant to disclose it. General statements are not enough.
Still, if the plaintiff proves the existence of trade secrets in his possession, and the defendant's access to them, and if he proves that the defendant's development is substantially similar to that ofV, then there is a prima facie suspicion of theft of the trade secret. The presumption of use arises. This is a presumption that can be contradicted. If the defendant wishes to present data regarding its development, the burden of proof is on him. The burden of persuasion always remains on the plaintiff's shoulders, but here the law comes in and heals his evidentiary inferiority. The data regarding the defendant's commercial conduct are in his possession. In order to contradict the presumption, he can expose them. On the other hand, he has the option of not doing so, and to argue that the plaintiff has not met the basic burden imposed on him when examining the totality. However, in doing so, he takes upon himself the risk that the presumption of use, which will not be concealed, will tip the scales.
- Thus, when we enter the valleys of the dispute over the theft of trade secrets, we rely less on the subjective testimonies of the parties than on the objective evidence placed on the table.
Are these really trade secrets? Was the defendant accessible to them? Are their characteristics reflected in his work? Do the products he developed include them? Can the defendant show how he developed his products without improper use of the plaintiff's trade secrets? In all of these, the subjective evidence does not weigh decisive weight. Objective characteristics are the decisive. The plaintiff can claim the theft of a trade secret with passion and deep persuasion on the witness stand, but if this pretentious secret reflects publications that are in the public domain, then his claim must fail. The defendant can testify that there is no program for him to steal such a secret, and claim it from his heart, but if he cannot contradict his exposure to the secret and explain how he used his own products, it will be of no use.
- And what about us?
The answer is complex in the circumstances, given the complexity of the material we are dealing with - mobilizing science in favor of practical developments that can advance our war against deadly epidemics. It is not for nothing that the parties were equipped with experts on their behalf, and it is not for nothing that an expert was appointed by the court to examine the question of whether the information transferred to the defendants included trade secrets, and whether the defendants made use of it.