Trade Secrets and Deep Secrets

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