In Asia, where trade secret violations are enforced via unfair-competition law, referrals for criminal prosecution should continue to climb, while in the UK, efforts by standard-essential patent owners to keep their licensees shielded from public view could come to an end in the new year.
Arguments over the extent to which licensing terms for standard-essential patents should be kept under wraps — both in and out of court — mean trade secrets will remain a key part of the UK SEP debate into 2026.— UK transparency push —
InterDigital won a case at the English Court of Appeal to keep secret the financial details of its licenses, with judge Colin Birss agreeing that to publish the information would cause “real commercial harm” to InterDigital.
The decision, which came as part of major litigation between Optis and Apple over fair, reasonable and non-discriminatory licensing, or FRAND, licensing rates, was welcomed by other SEP holders as an important decision for helping them protect what they see as trade secrets.
But the tide may be turning on this defense. Some intellectual property judges in the UK have made clear their feeling that SEP licensing terms should be as transparent as possible.
There is also a more general push for more transparency in SEP licensing rates in the UK Intellectual Property Office’s consultation on reform to the SEP FRAND licensing process. Broadly aimed at addressing the perceived imbalance in negotiating power between licensees and licensors, the consultation suggests that publishing licensing terms could give licensees valuable leverage and ensure a more even playing field.
But if those terms are broadly considered trade secrets on the part of the licensors, as the Court of Appeal decision suggests, then the IPO may face a more significant hurdle than just the commercial appeals of SEP holders when it comes to overhauling the system.
— In US, uniformity lacking —
In 2026, the Defend Trade Secrets Act (DTSA) will mark its 10-year anniversary. Complaints under the US statute continue to climb — as do damage awards for prevailing plaintiffs.
While that is arguably evidence of a law working as intended, practitioners say disparities in how the DTSA is being interpreted and applied remain problematic.
To that end, the Sedona Conference recently drafted model jury instructions “to streamline litigation across the circuits,” with almost 20% of all DTSA cases currently concentrated in the Ninth Circuit. At the same time, Sedona’s Working Group 12 (WG12) on Trade Secret Law noted that “a federal common law interpreting the DTSA is emerging, albeit slowly, with no one circuit predominating.”
“By providing a lodestone to consensus practice, these proposed instructions seek to put a finger on the scale toward uniformity and consistency, to provide a foundation for courts new to the area, and to reduce disputes as parties prepare their cases for trial,” they explained.
Comments are being accepted by the Sedona Conference on the WG12 proposal through Jan. 17. Another development worth watching involves the widescale adoption and integration of AI in day-to-day workflows.
Michael Sugrue, managing director with Alvarez & Marsal's Disputes and Investigations practice and a specialist in digital forensics, complex e-discovery and cyber incident response, told MLex he expects to see AI used “not as a ‘silver bullet' tool used by practitioners, but as a new source of exposure" in 2026.
“We’ll likely see more cases where employees expose proprietary data to public large language models (LLMs) and more disputes over whether companies have unknowingly absorbed their competitor’s secrets through AI-assisted workflows,” he elaborated.
But AI’s impact on trade secrets won't be limited to liability. Sugrue also predicts “emerging categories of trade secrets tied to prompt engineering and the design of models, agents and training data” are on the horizon in the US.
— Landmark charges in Taiwan —
Trade secrets have increasingly pushed up the risk agenda by policy and prosecutions. The Unfair Competition Prevention Act, or UCPA, already offers civil and criminal tools; recent amendments tightened protection around “shared data with limited access,” clarified procedures for cross-border cases and increased damages levers, reflecting a government drive to deter leakage in digital supply chains.
Compliance baselines also shifted in 2025. METI updated trade-secret management guidance, and firms have been urged to formalize access controls, audit trails and takedown playbooks — practices that tend to surface in police referrals and charging decisions.
Regionally, Taiwan’s moves underscore the stakes for Japan’s tech ecosystem. Prosecutors in Taipei brought landmark charges against Tokyo Electron’s Taiwan unit under the National Security Act and Trade Secrets Act, alleging failures to prevent ex-TSMC insiders from misappropriating process know-how tied to 2-nanometer technology.
Separate detentions of former TSMC staff over suspected core-technology leakage reinforced that prosecutors are willing to pursue criminal theories, not just private suits.
Domestically as well, criminal referrals in data-leak cases that fit UCPA elements (secret management, utility, non-public) — especially where cloud logs and device forensics create clean chains of proof — are on the rise, reinforced by a prosecutorial focus on tighter internal controls as charging criteria.
Law enforcement told MLex there has been a spike in company-filed complaints against ex-employees for alleged post-departure retention or removal of confidential files.
— EU Data Act will test limits —
In 2026, trade secrets law in Europe will be shaped by how regulators and courts apply the EU’s Data Act, which governs access and sharing of data generated by connected products and digital services. Under this law, users now hold primary rights over the data generated through product use, while manufacturers may access it under an agreement and must disclose it to users and their chosen third parties.
These datasets often contain trade secrets. The law therefore obliges data holders – the manufacturer or service provider – to point out the confidential elements, implement safeguards and, in exceptional cases, halt disclosure and inform authorities.
Under the EU’s Trade Secrets Directive, protection is based on lawful control over secret information. Under the Data Act, manufacturers may have factual access but no autonomous legal right to the data because access flows through the user.
The outcome could determine the practical limits of trade-secret protection for industrial manufacturers such as carmakers, IoT and medical-device companies, and for service providers like cloud and data-processing platforms.
Most provisions of the Data Act apply since September, with more obligations to phase in through 2026 and 2027. Next year is likely to offer the first real test of how the new law works in practice and how far trade secret claims can constrain or be constrained by mandatory data-sharing obligations.
Administrative bodies will for the first time determine whether information qualifies as a trade secret and whether proposed confidentiality measures are proportionate. Their decisions risk diverging across sectors and member states, and over-claiming by companies remains a concern for authorities and market participants seeking predictable access to data.
— China’s high-profile prosecutions —
In 2025, China’s trade secret protection moved from back-office compliance manuals into courtrooms, and even criminal trials.
A series of high-profile prosecutions, from the sentencing of 14 former engineers at Huawei’s chip unit HiSilicon to the investigation of a departed executive of battery giant CATL (see here), marked a shift toward using criminal law to deter leaks of core technologies in strategic sectors such as semiconductors and advanced batteries.
As employee movement has emerged as a key vulnerability in safeguarding proprietary technical secrets, China’s top court has clarified the limits on restricting mobility (see here), emphasizing that non-compete clauses must be proportionate to the sensitivity of the information involved and can't be used to unfairly bind workers in the name of protecting trade secrets.
Several landmark civil court rulings over the past year, involving deep-learning algorithms (see here) and software code (see here), reinforced that sophisticated digital assets can qualify as protectable trade secrets. The courts also underscored core elements of a trade secret, signaling higher legal exposure for both employers and departing employees in fast-evolving industries.
As 2026 approaches, the tougher penalties for trade secret misappropriation under China’s amended Anti-Unfair Competition Law, which took effect Oct. 15, will force companies to update their practices.
Businesses will need tighter onboarding protocols, clearer boundaries on non-competes and stronger systems to track digital assets, restrict access and document confidentiality measures more rigorously, as suggested by a Chinese court (see here).
—With analysis by Xiaoqiong Gao and reporting by Douglas Clarke-Williams, Toko Sekiguchi and Inbar Preiss.
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