Trade Secret Prices & High-Tech Devices: How Medical Device Manufacturers are Seeking to Sustain Profits by Propertizing Prices

Abstract:     
The law of trade secrets has taken a back seat to copyrights and patents in the explosion of scholarship on intellectual property issues over the last decade. While scholars concerned for the future of the public domain have argued forcefully and persuasively against the continuing expansion of rights - both in scope and duration - for holders of copyrights and patents, they have said little about the corresponding "creep" that has been occurring in the law of trade secrets. This article examines some of the causes and effects of that "creep" in the context of recent claims by the medical device manufacturer Guidant that the actual prices its hospital customers pay for implantable devices, including cardiac pacemakers and defibrillators, are protectable as trade secrets under the Uniform Trade Secrets Act ("UTSA").

Keywords: trade secrets, secret prices, medical devices, price transparency, health policy

JEL Classifications: K12, K20, I18, I11, K39, L11, O34

Accepted Paper Series