Aston Martin fuels the debate on industrial espionage in Formula 1

This Sunday Formula 1 returns. And it does so with controversy. Fernando Alonso’s third place at the wheel of an Aston Martin in the first round of the championship has raised a wave of insinuations in the ranks of Red Bull, where they assure that the British team’s car is a carbon copy of theirs. The accusations are fueled by the signing a year ago of Dan Fallows, a Red Bull aerodynamics engineer, by Aston Martin, after 15 years in the Austrian house. The technician, in addition to his knowledge, took his team of specialists with him.

Since the incorporation of Fallows, the quality leap of the British team has been remarkable. In view of the surprising performance of the green team, the driver Checo Pérez was ironic: “It’s great to see three Red Bulls on the podium,” he joked with the journalists, reacting to Alonso’s third place and the similarity between the two cars. Helmut Marko, a strong man at Red Bull Racing, went a step further and stated: “If you compare the two cars, the Aston Martin is the most similar to the Red Bull. There are reasons why this is so. It is not only Dan Fallows who has moved to Aston Martin, but other employees as well. They obviously have a good memory.”

The million dollar question is to what extent can an engineer use his knowledge in a competitive team? The issue, extremely complex, touches various branches of law full of fringes, such as labor law, industrial property and unfair competition. To begin with, it is common for builders to sign a pact of silence with their employees in their employment contracts. In this way, the specialists assume strict confidentiality clauses, which can go “even beyond the termination of the employment relationship”, explains Eric Maciá Lang, a lawyer specializing in ICT, industrial property and secrecy at Pons IP.

Land paid to the conflict

That of business secrets is fertile ground for conflict. Signing a contract does not make an engineer forget what he has learned. The line that separates business secrecy and professional experience is fine: the confidential information of a company, protected under legal lock, is not the same as the baggage of knowledge inherent to the scientist, something that the expert cannot renounce like someone else. change uniform.

The lawyer Eric Maciá explains it with an example. “A company develops an algorithm to solve aerodynamic problems. It can be considered that said algorithm is a business secret, of which the company is the owner”; however, “the general principles and scientific notions underlying the calculation of that algorithm are knowledge acquired by the employees working for the project.”

To avoid misunderstandings, the houses make it clear to their employees which investigations and processes should not leave their walls. One tactic is to send notices to the competition warning them of the possible legal consequences that the illegal use of certain information could have so that there are no misunderstandings. Another common practice, Maciá points out, is to interview outgoing workers and make it clear to them “what information is confidential”.

Even with these caveats, proving that a former operator has spoken out is difficult, even impossible. Sometimes what is known in legal jargon as a “diabolical test” is required, explains Pedro Fernández-Villamea, head of Legal & Compliance at Grupo Gees Spain. “It is something common in the automotive and pharmaceutical sectors. You suspect that the engineer or scientist who was yours is using certain information in the company that just signed him. But how do you show it?”

Aston Martin’s quickness to improve the performance of its cars could be an indicator, believes Laura Montoya, a lawyer at ABG Intellectual Property. “If the development of an element or product has lasted years and the new company, Aston Martin in this case, develops it in a very short time, and just after the incorporation of the engineer in question, there would be an indication of disclosure of the business secret” .

Helmut Marko has dropped in his statements to the press that he suspects that Dan Fallows has illegally downloaded documents from his former job. If that were the case, computer experts would enter the scene. “From our experience, in these cases computer technical expert reports are usually especially relevant, with which they seek to verify which files the former employee copied or sent and when,” the expert underlines.

On one last flank, the teams protect their ins and outs with non-competition agreements, which limit the freedom of the former employee to work for another company. The problem with these clauses is that they are expensive. “The more the worker’s right to provide services for the company he wants and in the position he wants is restricted, the higher the compensation to be satisfied”, explains Albert Toledo, director of the labor area of ​​Ceca Magán Abogados. Thus, “if it is agreed that a Formula 1 engineer cannot work for any rival team for two years, the amount to be paid in compensation will be very high.”

In any case, it must not be forgotten that labor mobility is a right of any worker. Formula 1 engineers have the right to change jobs, like anyone else. On the scuffle between Aston Martin and Red Bull, the lawyer Laura Montoya concludes: “As has happened with Fallows and the engineers who have packed their bags for Silverstone [sede de Aston Martin]that a company takes equipment from another company does not constitute unfair competition”.

Requirements

Since 2019, the Business Secrets Law controls and penalizes the illegal flow of information between Spanish companies. In the automotive industry, the engineering of a vehicle can constitute a trade secret if it meets four requirements: that “such information is not generally known” or “readily accessible”, has “actual or potential business value” and “has been been the subject of reasonable measures by its owner to keep it secret,” lists Ainara Rentería, a lawyer specializing in automotive and mobility at Gómez-Acebo & Pombo. In any case, it is vital that the company shows its interest in protecting information and thus emphasizes it in its regulatory compliance policies.

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