The Law and Theory of Trade Secrecy
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The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

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.
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Chapter 2: The Restatements, the Uniform Act and the Status of American Trade Secret Law

Robert Denicola


Robert Denicola* I. INTRODUCTION Patents in America are governed exclusively by federal law. Federal control over copyrights is only slightly less complete.1 Trademark law remains a mixture of federal law and state statutory and common law protection, but the federal scheme clearly predominates.2 Trade secret law, however, is state law.3 For most of its history trade secret law was also common law, consisting of a gradual accretion of precedents arising through the resolution of disparate disputes between owners and users of alleged trade secrets.4 As a creature of state law, it was never quite accurate to speak of the law of trade secrets; there were instead numerous trade secret laws produced as courts in separate jurisdictions experimented with the theories and scope of protection for confidential business information. In some places, and at some times, decisions put emphasis on the property * Margaret Larson Professor of Intellectual Property Law, University of Nebraska. 1 Under the pre-emption provision in the federal copyright act, only ‘works of authorship not fixed in any tangible medium of expression’ remain open to state copyright protection. 17 U.S.C. § 301(b). 2 Trademark registration under the federal Lanham Act, for example, allows trademark owners to secure rights in a mark earlier than under state law, 15 U.S.C. § 1051(1), and can substantially increase the geographic scope of protection. Id. § 1057(c). It also enables the owner to prevent the importation of infringing goods. Id. § 1124. Even for marks that have not been federally registered, the causes of action...

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