1. A day in the life of a trade secret lawyer
Bradley IM – Fall 2018
Steven L. Baron

2. Trade Secret Basics - Refresher
Information
Sufficiently secret to derive economic value from not being known
Reasonable efforts to maintain secrecy

3. Trade Secret Basics - Refresher
Types of Information
Types of Information
Technical or non-technical data
Formula
Pattern
Compilation
Program
Process
Device
Method
Technique
Drawing
Financial data
List of actual or potential customers

4. Trade Secrets Basics - Refresher
Famous Trade Secrets
Famous Trade Secrets
Google Search Algorithm
KFC
Coca-Cola
Blackburn’s baseball rubbing mud
NYT Bestseller List
Listerine
WD-40
Twinkies
Krispy Kreme Doughnuts
McDonald’s Big Mac sauce

5. Trade Secrets Basics – Refresher
Governing law
State Statutes and Common Law
Federal –
Defend Trade Secrets Act
Economic Espionage Act
Life Span of a Trade Secret
Forever – as long as the secret remains a secret

6. Trade Secret Basics Misappropriation Legal Remedies Acquisition
Disclosure
Legal Remedies
Injunction
Damages $$$
Punitive damages $$$
Attorney’s fees $$$

7. Case Example 1 Learning Curve Toys v. Playwood Toys

8. Case Example 1 Learning Curve Toys v. Playwood Toys
LCT = licensee of Thomas the Tank Engine
PW = wooden toy manufacturer
LCT and PW meet at NY Toy Fair
LCT and PW meet at PW’s manufacturing facility in Canada

9. Case Example 1 Learning Curve Toys v. Playwood Toys
After we sat down in the board room, Harry [Abraham of Learning Curve] immediately said: "Look, we're going to disclose confidential information to you guys, and we're going to disclose some designs that Roy [Wilson of Learning Curve] has that are pretty confidential. If Brio were to get their hands on them, then we wouldn't like that. And we're going to do it under the basis of a confidential understanding."And I said: "I also have some things, some ideas on how to produce the track and produce the trains now that I've had a chance to look at them for the last couple of days, and I think they're confidential as well. So if we're both okay with that, we should continue." So we did.

10. Case Example 1 Learning Curve Toys v. Playwood Toys
PW discloses to LCT idea for the “Clickety-Clack Track”
The parties meet a few more times but never enter a contract
LCT launches the Clickety-Clack Track and got an enormous boost to its sales
PW sues for misappropriation of trade secret

11. Case Example 1 Learning Curve Toys v. Playwood Toys

12. Case Example 1 Learning Curve Toys v. Playwood Toys
Jury finds in favor of PW and awards $8M
Judge reverses verdict
PW appeals to Seventh Circuit

13. Case Example 1 Learning Curve Toys v. Playwood Toys
Seventh Circuit reverses in favor of PW
Concept was a secret outside PW
Concept was a secret inside PW
PW took reasonable steps to maintain secrecy
Oral confidentiality agreement reasonable
Concept was valuable to PW and its competitors
Lack of time, effort and money to develop did not matter
Ease of duplication did not matter

14. Take Aways On Trade Secret Law
A secret remains a secret as long as you keep it a secret
Efforts to keep the secret must be reasonable
Oral confidentiality agreements work, but written are better
A trade secret can be something you come up with in a flash of inspiration