Trade secret protection

This article provides a basic, step-by-step approach to problem solving in the practice and management of patents and trade secrets. The significance of aggressive patent and trade secret protection to the economic well-being of a business or organization should not be underestimated. Without patents and trade secrets, the marketplace is reduced to competition on the basis of price, which may be very difficult. 

Trade secret rights are based on the complete absence of disclosure of the invention to anyone other than the owner. Oftentimes ideas, developments, and advances that are the subject of trade secret protection are those which may not be patentable, for any of a number of reasons. These reasons can include the nature and subject matter of the advance or development, as weU as the commercial value of the advance or development. In any instance, an individual, business, or corporation is weU-advised to consider all possible means of protection when reviewing an advance, development, or invention. 

Some factors to consider when evaluating patent and trade secret protection include (/) the form and content of the technological advance, idea, development, or appHcation (2) the desired term of protection (J) the potential for the technological advance, idea, development, or appHcation to be the subject of a commercial product (4) work done previously (5) events which have pubHcized or pubHcly disclosed the technological advance, idea, development, or appHcation and (6) factors that may be critical to keeping the technological advance, idea, development, or appHcation confidential, and what events may necessitate disclosure. 

Because there is no "federal law of trade secrets," protection of trade secrets is often left to the variabHity of the criminal and civil laws of the 50 states. To the extent that a trade secret is property, violation, theft, or misappropriation of the trade secret may be the subject of criminal penalty. To the extent that a trade secret is bound to rights, violation or misappropriation of the trade secret may be the subject of civil penalty. Significant effort, however, has been made in developing a uniform body of law to apply to ideas and innovations which may be the subject of this form of protection. 

Consistendy protecting all trade secret information to the same level, including consistendy investigating any concerns over the theft or breach of trade secret protection. 

Trade secret protection is probably the weakest of all intellectual property rights. The US Uniform Trade Secret Act defines a trade secret as information, including a formula, pattern, compilation, program device, method, technique, or process, that (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy [33]. 

Under this definition—which is similar to the definitions adopted by other countries—trade secret protection is available only for information that is known to a smallish group of persons and that is considered by that group to be confidential and economically valuable. Once the information becomes more widely known, it no longer qualifies for trade secret protection because its value has been lost. As a result, once the information has become generally known, it can be freely used by other companies for their own purposes. 

Trade secret protection, 110, 119-122 Training programs, 155-157 Transgenic mice, 42 Transkaryotic Therapies, 130 Translating Research Into Practice (TRIP) initiative, 324 Translational research, 323-324 Trazodone, 221 Treatment disparities, among minorities, 275-278 Treatment population, 91 Treatments, more effective, 125 Treatment substitution, 238 Trimodal distributions, 166 Trust... 

We granted certiorari to resolve a question on which there is a conflict in Courts of Appeals whether state trade secret protection is pre-empted by operation of the federal patent law. In the instant case the Sixth Circuit Court of Appeals held that there was pre-emption. The... 

Trade secret protection is essentially a matter of state law with about 52 jurisdictions, not necessarily consistent. 

Whenever the nature of an invention is such that it can be exploited in secret, thought should be given to trade secret protection rather than patent protection. 

It is not always easy to make the correct decision among alternatives when seeking to protect inventions. The inventor who decides on trade secret protection may regret that decision in a few years when the secret is inadvertently or maliciously revealed or when some analytical tool is developed which allows back-engineering of the invention. In the area of pharmaceuticals, trade secret protection... 

Trade Secret Protection Outside the United States, 768... 

The practical role of trade secrets in the drug development and discovery industry may, of course, be significantly limited by the public disclosure of information and data required by the FDA approval process, publication of pending patent applications, and the large number of groups working in this area, who may independently discover the secret. Information or data that the FDA publicly discloses or otherwise makes available to the public loses its status as a trade secret. However, where trade secret protection is not available because of the inability to maintain secrecy, patent protection may be the only viable form of protection available. 

Trade secret protection is generally governed by state law thus, its definition can vary from state to state. One common definition provides that a trade secret consists "of any formula, pattern, device, or compilation of information that is used in one s business, and that gives him an opportunity to obtain an advantage over competitors who do not know or use it" (268). Another definition, which a significant number of states (269) have adopted in some version, is provided by the Uniform Trade Secrets Act [Ilnformation, including a for-... 

Even within such a short lifetime, however, trade secrets remain a useful adjunct to patent protection. For example, trade secret protection can be used to protect an invention before filing a patent application and while the application is pending before the PTO up until the time of publication. Trade secrets may also be used to protect later improvements in patented processes or materials that do not, in themselves, warrant filing separate patent applications. 

Australia. InAustralia, trade secret protection is based on common law (both English and Australian). The subject matter of the trade secret must relate to a trade. Portions of the trade secret may be known, but the overall result must not be known or achievable to the public. Protection can be based on breach of an express or implied contract or breach of a confidential relationship. Remedies can include injunctions... 

France. Trade secret protection per se does not exist in Franee. However, the combined protection afforded to manufacturing secrets, commercial secrets, and "know-how is similar to trade secret protection. To be eligible for such protection, the information must not be known by others in Franee (287). Manufacturing secrets must actually be used, or be ready for immediate use, in industry thus, ongoing research and development information or data may not qualify as a manufacturing secret. Protection is also afforded to know-how technical information that will ultimately be used in industry may be protected as know-how. Commercial secrets include commercial and financial information. Remedies for improper use include damages, injunctions, and specific performance. 

Some countries (e.g., France and Italy) allow trade secret protection for information that is not known within their national boundaries, even if it is known in other countries. In this age of almost instant communication, computer databases, and the Internet, it is increasingly unlikely that information that is known elsewhere in the world can effectively remain a secret for any significant length of time in a given country (especially in highly industrialized countries). 

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