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The New Law of Ideas

42 Pages Posted: 18 Mar 2015  

Robert Denicola

University of Nebraska College of Law

Date Written: November 15, 2014

Abstract

Most businesses run on ideas — ideas for new products, new production methods, and new marketing strategies. Since at least the middle of the last century rights in ideas have been analyzed under a body of law that came to be called “the law of ideas.” Dominated by contract principles, the law of ideas also subsumed an array of additional theories regularly invoked to protect idea merchants, including property-based causes of action such as conversion and misappropriation, quasi-contractual claims premised on unjust enrichment, and claims alleging breaches of confidence, fiduciary duty, and loyalty. Texas in 2013 became the forty-seventh state to enact the Uniform Trade Secrets Act, which, as its name implies, establishes uniform rules governing the protection of trade secrets. Although largely overlooked by commentators, the law of ideas has been dramatically transformed by the success of the UTSA. The Act consciously subsumes ideas within the scope of trade secrets, creating a statutory basis for idea protection. It also does much more. The UTSA displaces non-contractual remedies for the misappropriation of trade secrets, effectively eliminating the tort and restitutionary theories that have long been staples of the law of ideas. Even for portions of the old law of ideas that survive — mainly contract claims — this new trade secret perspective on ideas clarifies several troublesome issues. It also ensures an appropriate accommodation with federal patent and copyright law. This article is an initial exploration of this new law of ideas.

Keywords: ideas, law of ideas, Uniform Trade Secrets Act, trade secrets

Suggested Citation

Denicola, Robert, The New Law of Ideas (November 15, 2014). Harvard Journal of Law and Technology, Vol. 28, No. 1, Fall 2014. Available at SSRN: https://ssrn.com/abstract=2579872

Robert Denicola (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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