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The Law and Theory of Trade Secrecy

The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg

This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.

Chapter 11: Uncorking Trade Secrets: Sparking the Interaction between Trade Secrecy and Open Biotechnology

Geertrui Van Overwalle

Subjects: law - academic, intellectual property law


Geertrui Van Overwalle* INTRODUCTION ‘Three may keep a secret, if two of them are dead.’ This quote from Benjamin Franklin reflects well the delicate, if not impossible attempt to share a secret. Sharing secrets, however, is of vital importance. Translated in legal parlance, the exchange of trade secrets may be essential to the operation and further development of patented inventions. Beyond the information disclosed in patents, users might need to acquire complementary know-how in order to make the patented technology function optimally.1 The exchange of patented inventions and related know-how often takes place through bilateral or cross-licenses. Our previous research examined the role of collaborative licensing models in streamlining access and use of patents, specifically in the field of genetics.2 The present chapter examines the potential role of collaborative licensing models in facilitating the transfer of related trade secrets. The central question, around which the chapter * Professor of Intellectual Property Law, University of Leuven, Belgium; Professor of Patent Law and New Technologies, University of Tilburg, the Netherlands. The present research was supported by the Sixth Framework Programme of the European Union (Eurogentest) and the Vancraesbeeck Fund (K.U. Leuven, Belgium). Special thanks go to Pamela Samuelson and Robert Bone for helpful discussions, and Rochelle Dreyfuss and Esther van Zimmeren for comments on an earlier draft of this chapter. 1 See Ashish Arora, Contracting for Tacit Knowledge: The Provision of Technical Services in Technology Licensing Contracts, 50 J. Dev. Econ. 233, 246 (1996). 2 Gene Patents and Collaborative Licensing Models: Patent Pools,...

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