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 14: Trade Secrets and Antitrust Law

Harry First


Harry First* I. INTRODUCTION The antitrust treatment of trade secrets has remained largely hidden. There has been little separate focus on the competition problems that trade secrets may present, even though trade secret protection was raised as a defense in early antitrust litigation. The U.S. federal antitrust agencies’ Intellectual Property Licensing Guidelines treat trade secrecy the same way they treat other forms of intellectual property.1 Antitrust commentary focused on trade secrets is scarce.2 In a sense, the antitrust metes * Charles L. Denison Professor of Law, New York University School of Law. I thank Tomas Nilsson and Anthony Badaracco for their excellent research assistance. A research grant from the Filomen D’Agostino and Max E. Greenberg Research Fund at New York University School of Law provided financial assistance for this chapter. 1 See U.S. Dep’t of Justice and Fed. Trade Comm’n, Antitrust Guidelines for the Licensing of Intellectual Property § 2.1 (1995), available at www. (‘IP Guidelines’). A more recent report issued by the federal enforcement agencies similarly treats trade secrets the same as other forms of intellectual property. See U.S. Dep’t of Justice and Fed. Trade Comm’n, Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007), available at atr/public/hearings/ip/222655.pdf (‘Promoting Innovation’). The IP Guidelines are discussed infra notes 25–6 and accompanying text. 2 See, e.g., A.B.A. Section of Antitrust Law, Antitrust Law Developments 1156–7 (6th ed. 2007) (‘ALD 6’) (briefly noting various antitrust doctrines implicated by trade secrets law); Jerry Cohen and Alan S. Gutterman, Trade...

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