Draft Innovation Act : Kudos for Positive Law

Even lawyers who are not well acquainted with Intellectual Property Law know a thing or two about confidential information. The credit for this goes to lawyers creating facts (as well as law) unlike they are usually alleged to do. In the case of Diljeet Titus vs Alfred A. Adebare the Delhi High Court inter alia prevented a lawyer from utilizing data from his former employer on grounds of breach of confidentiality. The basis of this decision was (a) the brooding omnipresent common law principles on confidentiality; and (b) a contractual device known in the trade as a non-disclosure agreement.

Soon there may be statutory augmentation to this in the form of the Innovation Act, 2007. A Draft of the enactment has recently been made available. The draft enactment when seeking to provide measures to support innovation provides for an entire chapter on confidentiality. It recognizes the contractual right of parties to set out terms and conditions in respect of confidentiality. The act also provides for confidentiality arising from non contractual relationships.

The Draft Innovation Act, 2007 goes beyond sounding positive in its title. It recognizes the harm which may be done by the dissemination of confidential information. This recognition comes through by providing for an elaborate provision for preventive or mandatory injunctions restraining the misappropriation of confidential information. Another feature which appears to be striking against disclosure of confidential information is the liability for third party disclosure and consequential damages. The act finally contains a simple good faith safe harbor from penalties.