Intellectual Property Boston College Law School February 9, 2009 Trade Secret – Part 1

Trade Secret Sources of law –Uniform Trade Secrets Act –Restatement (Third) of Unfair Competition –Economic Espionage Act (Federal) Elements of misappropriation claim –(1) Info must be a trade secret –(2) Reasonable steps to keep secret –(3) Misappropriation

Trade Secret Theories –Incentive Theory (Property) –Deterrence Theory (Tort) Balance –Encourage incentive, deter bad behavior –Permit free circulation of info and labor

Uniform Trade Secrets Act §1. Definitions –(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value … from not being generally known to, and not being readily ascertainable by proper means..., and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Trade Secret Defeated by disclosure –(1) Publication (including patent) –(2) Sale of product where secret apparent –(3) Disclosure by third party –(4) Inadvertent disclosure –(5) Government-required disclosure

Uniform Trade Secrets Act §1. Definitions –(1) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means ….;

Aerial Photography

Examples: Improper Means Improper Means? –Observing neighbor’s laptop on airplane –Striking up a conversation w/ employee (and making false statements about who you are) –Eavesdropping with long-distance microphone –Using a telescope to peer through windows –Going through a company’s trash in public dumpsters

Administrative Next Assignment – For Tomorrow –Finish III