The basic principle to be adopted is that subject-matter has not been made available to the public by use or in any other way if there is an express or tacit agreement on secrecy which has not been broken., or if the circumstances of the case are such that such secrecy derives from a relationship of good faith or trust. Good faith and trust are factors which may occur in contractual or commercial relationships.
In order to establish whether there is a tacit agreement, the division must consider the particular circumstances of the case, especially whether one or more parties had an objectively recognisable interest in maintaining secrecy. Important aspects in this regard are, inter alia, the commercial relationship between the parties (e.g. parent company and subsidiary, good faith and trust, joint venture or ordinary commercial transaction) and the exact object of the purported secrecy agreement (e.g. test specimens or parts for serial production).
A party alleging that subject-matter was not made publicly available due to an express or tacit agreement on secrecy must substantiate and, if contested, prove this allegation. A party alleging that an undisputed or proven agreement on secrecy was broken must substantiate and, if contested, prove this allegation.
Reference should be made to the particular case of a non-prejudicial disclosure arising from an evident abuse in relation to the applicant, in accordance with Art. 55(1)(a) (see below, G‑IV, 7.3.2; G‑V).