Section 20(1)(a): Questions

Archived [2008-11] – Investigator's Guide to Interpreting the Act

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Paragraph -- 20(1)(a)
Statement of Test to be Met
Information must describe something of a technical nature, plan, formula, process, device, pattern, compilation, programme, method, technique must be the product of innovation or effort by a third party
Relevant Questions	Departmental Response	Assessment
What does the record describe? Does the information in the record represent a [method, formula, technique and process]? If the information represents a compilation of information, ask? What are the sources of the information? How did the third party generate the information? Did the third party need permission, a licence or other agreement to use the information? details of agreement How did the third party generate the information [method, formula, technique and process]? Did they originate the idea? Is the [method, formula] the product of work, research and effort undertaken by the third party? Is the [method, etc.] unique or new? Has the third party applied for patent, trademark, industrial design or copyright protection with respect to the [method, process, formula, etc.]?

Statement of Test to be Met
must have commercial or industrial application relationship between the [method, process, etc.] and the business of the third party must be direct
Relevant Questions	Departmental Response	Assessment
Is the [method, etc.] used or sold commercially? Is the [method, etc.] used in the production of an end product or service? how? How does the [method, etc.] contribute or add value to the business of the third party? How are the [method, process, formula, etc.] used or applied? What is the market for the [method, process, etc.] or the end product?

Statement of Test to be Met
[method, process, etc.] must be secret reasonable efforts must be made to maintain its confidentiality assess degree of circulation is it limited?
Relevant Questions	Departmental Response	Assessment
Has the information been disclosed to others? who? what were the circumstances? for what purpose? Is use of the information licensed? Are there terms in the license preserving the confidentiality of the information, non-disclosure clauses, etc.? Is there an agreement by those to whom the information is disclosed prohibiting further disclosure? Where are the records stored? Are they stored separately from other files? What restrictions are there on its circulation within the third party? Which employees have access to the records? Which employees know the information contained in the records? Has the [method, process, formula, etc.] described in the records been the subject matter of scientific or technical papers or discussed at conferences? has it been published? where? Is the [method, process, formula, etc.] demonstrated to customers or suppliers? when? What precautions are taken to prevent further disclosure? Is the [method, process, formula, etc.] described in a product monograph (i.e. approved medical devices, drugs, pharmacology manuals, etc.)?

Statement of Test to be Met
must be value in the fact that the information is not known (harm presumed to occur from mere disclosure)
Relevant Questions	Departmental Response	Assessment
See questions above concerning relationship between [method, formula, process, etc.] and the business of the third party? Are there others who make similar products or generate similar information in competition with the third party? What competitive or other advantage does the [method, formula, process, etc.] provide to the third party? Can this advantage be quantified? How would disclosure benefit a competitor?