The Secret Life of Patents
35 Pages Posted: 14 Jan 2009
Date Written: January 14, 2009
This symposium essay challenges the claim that trade secret law can and should play an increased role in safeguarding intellectual property today. In our view, although trade secret law will continue to be useful in certain circumstances, it remains - and should remain - of limited significance. This is for two reasons. First, as a practical matter, the digital age makes trade secrets more vulnerable. It facilitates disclosure by demolishing barriers that once prevented access to and sharing of information. Likewise, the digital age also makes disclosure more costly. In the past, a leak could be contained. Today, mass disclosure, an irreversible loss, is just an e-mail away. Second, from a policy perspective, greater reliance on trade secrets presents the risk of overreaching; that is, the use of the law to claim protections beyond those the law actually confers. Overreaching, a problem found increasingly in other areas of intellectual property law, upsets the balance between intellectual property rights and the public domain. In arguing against the proposal for increased reliance on trade secrets, this article draws lessons from current trends in copyright law. Specifically, owners of creative works who are dissatisfied with the protections that copyright law confers are increasingly turning to contract law to augment their rights and claim protections beyond those that copyright law itself provides. These actions undermine the public domain. The experience of using contract law to augment copyright law highlights similar public costs that may result from aggressive use of trade secret law to augment patent protections. A diminished role for trade secrets, which is likely in the digital age, would therefore be a welcome development. More generally, trade secret law is not on par with patent law. Federal law expresses a clear preference for the inventor who discloses an invention to the public and obtains a patent over the inventor who keeps the invention a secret. State trade secret law must not undermine the policy of disclosure that Congress has adopted.
Keywords: patents, trade secrets, overreaching, patent reform,trade secret law, digital age, espionage, theft, leaks
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