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Unformatted text preview: Trade Secrets: Three Important Parts: 1) Secret- Doesn’t need to be completely secret - Just relatively secret - Think Skull and Bones 2) Trade - Has to be used in trade- Not your personal diary- Think McDonald’s special sauce 3) Advantage or potential for advantage- Losing money ≠ advantage- A trade secret that is defective/doesn’t work ≠ advantage- Think weight loss formula that makes people gain weight Use: 1. For torts you need breach of duty 2. Misappropriation of trade secret = tort 3. For misappropriation of trade secret you need a breach of duty. 4. Question: What is the breach of duty? 5. Answer: “Wrongful misappropriation occurs if one discloses or uses another’s trade secret without a privilege to do so.” Definition Privilege: Privilege can be conferred by the owner’s consent: 1. Can give competitors a license (implied or actual); 2. Employees can use it in the scope of employment; Privilege can be conferred by the owner’s carelessness Privilege can be OBVIATED (means to anticipate and prevent or eliminate) Without Privilege • Improper conduct is the key to liability • You can’t spy • You can’t hire a spy • You can’t acquire under false pretenses • You can’t break faith (i.e., a confidentiality agreement) • You can’t break faith, even if the secret could have been easily discovered independently . • With Privilege • Permission confers privilege • Implied permission confers privilege • But you do not always need permission to get privilege • W/o privilege ≠ w/o permission • You can use a trade secret without the owner’s permission, but still with privilege . • This happens when you are either very clever or the owner is very careless or the secret is no longer secret. How to lose a trade secret: • Competitor’s Cleverness – Independent discovery – Reverse engineering of product on the market • Owner’s Carelessness – Unrestricted disclosure to persons not under obligation of secrecy • Obviation – The secret is no longer secret – However they are a gamble that can last forever • Once a competitor gets a hold of trade secret with privilege but not under a confidentiality agreement, the owner is in a bad place. • Once the secret is not secret, there is no protection! • You cannot patent something that had previously been protected by a trade secret. Trade Secret v. Patents • Trade secrets, legally, can last forever, but don’t have to. • Whether or not they will depends on many factors Remedies: • In other words, the court forces the defendant to put the plaintiff back in the position she would have been in had the misappropriation not occurred. • That is, the remedy is the same for any other tort!...
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- Spring '06
- Supreme Court of the United States, First Amendment to the United States Constitution, child pornography, A Court