A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 4: Trade Secrecy and Common Law Confidentiality: The Problem of Multiple Regimes
Charles Tait Graves*1 I. INTRODUCTION Scholars and practitioners interested in analysing trade secret law at the level of theory – that is, exploring its economic, social and philosophical underpinnings in order to recommend policy objectives – face a serious obstacle. Unlike patent or copyright law, which are unitary regimes governed by statutes and, ultimately, the Supreme Court, what we call ‘trade secret law’ is much more amorphous. As a result, it is sometimes difficult to speak of trade secret law as a single body of law when analysing its effects or offering policy proposals for reform. The most important example is the definition of secrecy itself. Secrecy is interpreted differently under different tort and contract claims, and regulated differently under non-competition covenants. In some cases, courts have recognized quasi-trade secret claims encompassing non-secret information said to fall within some lesser, but still protectable, category of information. In recent years, this question has come to the forefront as courts have struggled to decide whether the Uniform Trade Secrets Act pre-empts alternative tort formulations in favor of a single definition of protectable information. This chapter will explore how the theoretical discussion of trade secret law is frustrated by the multiple regimes of confidentiality available in most jurisdictions. Whether one’s interest in trade secret law touches on innovation policy, employee interests, or merely describing trade secret law as a body of law subject to predictable results and internal consistency, it is important to understand the confusion among courts and practicing attorneys in everyday litigation....
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