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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 20: The Limits of Trade Secret Law: Article 39 of the TRIPS Agreement and the Uniform Trade Secrets Act on which it is Based

Sharon K. Sandeen

Subjects: law - academic, intellectual property law


Sharon K. Sandeen* I. INTRODUCTION All intellectual property rights (IPRs) have limits that are designed to achieve a balance between the benefits of IPR protection and other public policy objectives.1 During the negotiations leading to the adoption of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Law (‘TRIPS Agreement’),2 the need for balanced intellectual property policies was raised on numerous occasions by a variety of participants, notably in detailed submissions by Brazil in late 1988 and Peru in late 1989.3 Nonetheless, while U.S. negotiators acted to ensure that trade secrecy was covered by the TRIPS Agreement, there was little discussion of the need for limitations to ensure that trade secret protection would not unduly conflict with principles of free competition or the objectives of patent and copyright law. While it is tempting to suggest that the lack of attention to limitations on trade secret protection was the result of the developed world’s desire to expand the scope of IPRs, it can also be explained by the need for compromise in international negotiations and a concomitant willingness to Professor of Law, Hamline University School of Law, St. Paul, Minnesota. For a critique of the balance arguments in the context of international norm-making, see Graeme B. Dinwoodie, The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering, in Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS Plus Era 87–9 (Daniel Gervais ed., Oxford University Press, 2007). 2 Agreement on...

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