A Handbook of Contemporary Research
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 8: How Trade Secrecy Law Generates a Natural Semicommons of Innovative Know-how
Jerome H. Reichman* It is both disappointing and exhilarating to re-examine the functions of trade secrecy law for this volume. The disappointment stems from encountering many of the same old questions that Reichman, Samuelson and Scotchmer have addressed over a 20-year period.1 The exhilaration comes from rereading that brilliant article by Samuelson and Scotchmer on reverse engineering at some distance, and realizing how many questions these collective efforts managed to answer. So let me try to set the record straight in a few short pages, beginning with the question of whether or not it is better to treat trade secrecy law as a form of intellectual property law rather than as a business tort under unfair competition law.2 I. TRADE SECRETS AS A FORM OF INTELLECTUAL PROPERTY The logical point of departure is to observe that ‘intellectual property’ has never been just about exclusive rights in intangible, non-rivalrous creations. It has always included conduct-based liability rules found in some sui generis regimes, as well as absolute liability rules that confer only a * Bunyan S. Womble Professor of Law, Duke University School of Law, Durham, North Carolina. The author gratefully acknowledges the support of the National Human Genome Research Institute and the Department of Energy (CEER Grant P50 HG003391, Duke University, Center of Excellence for ELSI Research). 1 J.H. Reichman, Charting the Collapse of the Patent–Copyright Dichotomy: Premises for a Restructured International Intellectual Property System, 13 Cardozo Arts & Ent. L.J. 475, 504–17 (1995); J.H. Reichman, Legal Hybrids Between the...
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