Trade Secrets and Deep Secrets

NYU Law and Economics Research Paper No. 24-37

NYU School of Law, Public Law Research Paper No. 24-40

Research Handbook on Unfair Competition and Passing Off (Graeme B. Dinwoodie and Ansgar Ohly eds.  Edward Elgar Publishing, forthcoming)

19 Pages Posted: 7 Aug 2024

Date Written: August 01, 2024

Abstract

Unlike other IP law, trade secrecy protection lacks an express cutoff point. Instead, exclusivity ends through independent invention, reverse engineering, and in reliance on defenses that shield certain types of disclosure from liability. But as trade secrecy claims have become more popular, it has become clear that there is information that is not revealed in any of these ways, which is nonetheless necessary to protect social welfare. Examples include the knowhow needed to manufacture crucial medical supplies; the algorithms and training data required to protect fundamental rights from AI-driven decision-making; and the manufacturing, diagnostic, repair, and component information that facilitates the development of a circular economy. This paper discusses proactive ways to require the disclosure of these "deep secrets" while fulfilling the legitimate goals of trade secrecy law.

Keywords: trade secrets, intellectual property, reverse engineering, disclosure

Suggested Citation

Dreyfuss, Rochelle Cooper, Trade Secrets and Deep Secrets (August 01, 2024). NYU Law and Economics Research Paper No. 24-37, NYU School of Law, Public Law Research Paper No. 24-40, Research Handbook on Unfair Competition and Passing Off (Graeme B. Dinwoodie and Ansgar Ohly eds.  Edward Elgar Publishing, forthcoming), Available at SSRN: https://ssrn.com/abstract=4918972 or http://dx.doi.org/10.2139/ssrn.4918972

Rochelle Cooper Dreyfuss (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

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