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 7: Trade Secret Law and Information Development Incentives

Michael Risch


Michael Risch*1 I. INTRODUCTION Trade secrets differ from other forms of intellectual property in many subtle ways that affect incentives to invest in information development. These differences relate not only to the types of information protected, but also to the requirements one must meet to protect each type of information. The various divergences from and intersections between trade secret law and other intellectual property laws result in ‘differential incentives’, leading to differences in the amount and types of investments companies make in developing information. This chapter explores five types of differential incentives associated with trade secret law: (a) (b) (c) (d) (e) trade secret law versus no trade secret law; trade secret law versus patent law; trade secret law versus copyright law; trade secret law versus trademark law; trade secret law versus right to privacy. As discussed in more detail throughout the chapter, these comparisons flow directly from differences in the underlying theories for providing protection to different types of information. The theoretical framework for incentives provided by non-secret intellectual property protection is fairly well established. Copyright law and patent law are based in part on the theory that creativity and innovation, respectively, are incentivized by rewarding creators with limited governmental protection that facilitates recovery of investments in creation. Furthermore, the policies of copyright and patent law favor building on * Associate Professor of Law, Villanova University School of Law. The author thanks Alan Hyde, Mark Lemley, Anne Lofaso, Sharon Sandeen, David Schwartz, Katherine Strandburg, and participants of the NYU...

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