The Role of 'Commercial Morality' in Trade Secret Doctrine

96 Notre Dame Law Review (2020 Forthcoming)

51 Pages Posted: 7 May 2020

See all articles by Lynda J. Oswald

Lynda J. Oswald

University of Michigan, Stephen M. Ross School of Business

Date Written: April 6, 2020

Abstract

The approaching fiftieth anniversary of E.I. DuPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of the briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven decades and has become an important part of the contemporary trade secret doctrine lexicon, yet courts and commentators have not explored the meaning of this term. This study fills that gap in the literature by analyzing the origins of the “commercial morality” doctrine and its proper application in trade secret law. The development of U.S. commercial morality doctrine breaks down into four distinct time periods that illustrate the evolution of the commercial morality doctrine in trade secret law over time, including the shift from its initial use as a way to justify nascent trade secret law and its liability expansion to its modern equitable role in structuring injunctive relief for misappropriation.

The analysis also shows that while courts invoke commercial morality when adjudicating misappropriation claims, they do not define the meaning of the term or provide reasoned analysis of its application. This is problematic when courts use the term in lieu of careful analysis of the underlying facts and analysis underlying their decision. Explicit recognition of the equitable nature of commercial morality doctrine would facilitate judicial application of the concept in a principled and effective manner.

Keywords: trade secret, commercial morality, injunction, misappropriation

JEL Classification: K11, K20

Suggested Citation

Oswald, Lynda J., The Role of 'Commercial Morality' in Trade Secret Doctrine (April 6, 2020). 96 Notre Dame Law Review (2020 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3569964

Lynda J. Oswald (Contact Author)

University of Michigan, Stephen M. Ross School of Business ( email )

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