Academic

Federalizing Trade Secret Law: A Cause Whose Time Has Come/Patent/Trade Secret Complementariness -- No. 20

In the U.S. we have civil causes of action under federal law for infringement of patents, copyrights and trademarks. Alas, we do not have a federal civil cause of action for trade secret misappropriation! But we need one badly!

According to Mark Halligan, the main reason for the "step-child treatment of trade secrets" is the fact that "trade secrets did not find a solid home in intellectual property law" as a property right until the seminal Supreme Court decisions in Kewanee Oil Co. v. Bicorn Corp. in 1974 and Ruckelshaus v. Monsanto in 1984. This even though trade secret protection dates back to Roman times, every patent is born as a trade secret and over 90% of all new technology is grist for trade secrets. In my view, however, there is another more consequential reason for the "black sheep" status of trade secrets, which has been conferred upon them by what can be called the "patent über alles/trade secrets are the 'cesspool of the patent system'" school of thought, headed by Professor Kayton. Their beef is grounded on the secrecy aspect. It is considered reprehensible to keep inventions secret, inasmuch as this supposedly flies in the face of the patent system, the essence of which is disclosure of inventions for the benefit of the pubic. But this is an untenable colossal misconception, which I have documented as such in prior blogs and most particularly in Trade Secret Blog No. 8 ("Trade Secrets are Not Secrets").

Now why do we need to federalize trade secret law as a civil matter in light of the fact that we already have three statutes on the law books to pursue trade secret misappropriation? We have 1) the Uniform Trade Secrets Act (UTSA), promulgated in 1974 by the National Conference of Commissioners on Uniform State Laws and adopted in 45 states, the District of Columbia and the U.S. Virgin Islands, 2) the Economic Espionage Act of 1996 (EEA), which makes trade secret misappropriation a federal criminal offense, as well as 3) the Computer Fraud and Abuse Act of 2006 (CFAA), which provides civil and criminal causes of action for trade secret misappropriation involving computers and which is being invoked more and more frequently.

Full post as published by Jorda on Trade Secrets on September 18, 2008 (boomark / email).