La experiencia y conocimiento de los trabajadores como límite al secreto comercial

In most legal systems, trade secrets owned by entrepreneurs are protected. Such protection, however, has limits, and one of them is the hypothesis in which employees who have accessed a trade secret of their employer leave such company to practice their profession elsewhere, which entails the use of knowledge or skills related to such trade secret. The purpose of this text is to expose about this exception to trade secret protection in the comparative law and to provide a proposal for its interpretation in Chilean law. The resolution of this issue is not only of a theoretical nature, but particularly practical, since most of the cases of misappropriation of trade secrets are brought by employee who leave their jobs to take up new positions elsewhere, and in the event that they are sued, the main defense they put forward is that the allegedly misappropriated information has become part of their personal skills or knowledge, hence they can freely exercise them. In the specific case of Chilean law, it is proposed to resolve this dilemma by presenting a two-step test, first to determine whether the trade secret has become inseparably integrated in the employee’s person, and then to establish whether or not the protection of the trade secret in question would affect the mobility of the employee involved in the litigation.