Trade Secret (TS)
Theory of TS
- Policy 4 Need
- Can't benefit w/o making it not secret
- Can't enforce K of not telling b/c no consid. if no TS law
- Econ'ly waste res's by precaution
- Reqts 4 TS C/A
- TS
- Improper Taking
- TS
- Rest 757)b
- Extent 2 which info known outside, others in busi, & ee's
- Meas's taken 2 guard secret
- Value of info in competition
- Amt of effort / $ expended in dev'ing
- Ease / hard w/info properly acq'ed / duplicated by others
- Seem 2 req. cont. use of info
- Uniform Trade Secrets Act §1)4
- Info that's indep. econ. value from not being known / readily
ascertainable
- Rsbl effort 2 maintain secret
- Not req. cont. use of into
- Improper Taking
- Rest : Liab. If
- Discov. by improper means
- Breach of confidence
- From 3rd person w/notice was secret
- Was secret & discl. mistake
- Improper acq. by 3rd party not axnable but discl. is
- UTSA
- Improper means incl. theft, bribe, misrep., breach, induced
breach, / espionage
- Breach of duty
- Prevents acq. by person who may know got it improperly
- Rest. on use & discl. but UTSA on acq., use, & discl.
- Breach of Confidence Categ's
- Breach of express K
- Breach of implied K / Q-K'al
- Duty of confidence from rel.
- Protection
- Limited 2 protect only against those engaging in improper
behav.
- Protect forever until secret gone
- Reverse Engineering
- Gen'ly Not Wrongful Means of Acq'ing Info
- If all can reverse, probably no TS b/c widely known / readily
ascertainable
- Wrongful (Du Pont)
- When take in moment of spec. vulnerability, improper by comm'l
morality
- Empl. & TS of Customer List / Info
- Er's secret info v. ee's mobility & entitlement 2 gen.
accumulation of skill
- Info of gen. accumulation of skill & experience isn't
TS (Fleming)
- Written agmts help er's
- Nondiscl. agmt
- Restrictive cov. but disfavored & need 2 B rsbly nec.
w/o harm 2 pub.
- Choice of law cl.
- TS Litig.
- Prob. of Discl'ing Secret
- Remedies
- UTSA allows injunction until TS out but cont'ed 4 add'al X
2 elim. comm'l adv. from misapprop.
- UTSA allows 4 actual damages + unjust enrichment but can also
B rsbl royalty payment 4 D's use of TS
- UTSA allows exemplary damages 4 wilful & malicious up
2 2X compensatory
- Atty fee if egregious
- Int'l: Trade Rel'ed Aspects of IP Rts (TRIPs)
- Members protect aginst unauth'ed acq. & dishonest use
if info
- Secret so not gen'ly known among / readily accessible
- Comm'l value b/c secret
- Subj. 2 rsbl steps 2 keep it secret
- Ownership of TS
- In Work Setting
- If ee specif'ly hired 4 R&D, imply agmt that er has rt
2 invention & TS
- If ee not hired 4 R&D but invented during working hrs
/ used er's equip / material, then ee owns TS but er gets shop
rt of irrevocable nonexcl license 2 pract. invention
This material is copyrighted by the author. Use of this material
for profit is strictly prohibited without written consent
from the author.
12/2/1996
Ms. Haeji Hong
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