Law and Practice
Elgar Intellectual Property Law and Practice series
Chapter 3: US TRADE SECRET LAW AND THE UNIFORM TRADE SECRETS ACT
One of the challenges to understanding trade secret law in the United States relates to the fact that US trade secret law is primarily based upon the laws of each of the 50 states. Because the US government is organized as a federal system with most legislative power (at least in theory) residing in the states, the US Congress has limited powers to adopt laws to regulate activities in individual states. The principal exceptions include the powers granted to the US Congress under the Commerce Clause of the US Constitution ‘to regulate commerce among foreign nations, and among the several states, and with Indian tribes’ and the provision of the US Constitution that grants Congress the exclusive power to adopt patent and copyright laws. To date, however, the US Congress has not exercised its Commerce Clause powers to adopt a federal civil trade secret law, relying instead on a combination of well-established state laws and some overarching federal policies. Among the 50 states, the harmonization of state laws is achieved through three basic processes: (1) the common law development of the law whereby judges adopt the views of judges from other states and thereby create a ‘majority view’ on a given point of law; (2) statutory enactments whereby legislators of one state adopt statutes already enacted in other states; and (3) the uniform law-making process whereby an entity drafts and proposes uniform laws for adoption by all 50 states.
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