Volume 61, Issue 2 |
Page 311 |
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Stanford Law Review |
THE SURPRISING VIRTUES OF TREATING TRADE SECRETS AS IP RIGHTS
Mark A. Lemley
copy; 2008 by Mark A. Lemley and the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review at 61 STAN. L. REV. 311 (2008). For information visit http://lawreview.stanford.edu.
THE SURPRISING VIRTUES OF TREATING TRADE SECRETS AS IP RIGHTS
Mark A. Lemley*
- TRADE SECRET DOCTRINE 315
- EFFORTS TO UNDERSTAND TRADE SECRET THEORY 319
- CONSTRUCTING AN IP THEORY OF TRADE SECRETS 329
- IMPLICATIONS FOR TRADE SECRET LAW 341
* William H. Neukom Professor, Stanford Law School; of counsel, Keker amp; Van Nest LLP. copy; 2008 Mark A. Lemley and the Board of Trustees of the Leland Stanford Junior University.
Thanks to Chuck Adams, John Barton, Bob Bone, Dick Craswell, Zohar Efroni, Paul Goldstein, Wendy Gordon, Tait Graves, Joe Grundfest, Rose Hagan, Eran Kahana, Larry Lessig, David Levine, Jacqueline Lipton, Rob Merges, Mike Meurer, Roger Milgrim, Michael Risch, Sharon Sandeen, Peter Swire, Rebecca Tushnet, and participants in workshops at Stanford Law School and the IP Scholarsrsquo; Conference for discussions of these issues or comments on a prior draft.
This Article does not address perhaps the most divisive issue facing the law of trade secrecy: whether it is “trade secret law” (5983 cites in Westlawrsquo;s “allcases” and “tp-all” databases combined) or “trade secrets law” (a mere 2144 cites). Westlaw search conducted February 15, 2008. I use “trade secret” throughout—who am I to argue with 73.6 percent of all courts and commentators?—but that doesnrsquo;t mean Irsquo;m taking a definitive position on the issue.
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- How long does secrecy last? 352
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INTRODUCTION
Trade secret law is a puzzle. Courts and scholars have struggled for over a century to figure out why we protect trade secrets. The puzzle is not in understanding what trade secret law covers; there seems to be widespread agreement on the basic contours of the law. Nor is the problem that people object to the effects of the law. While scholars periodically disagree over the
purposes of the law, and have for almost a century,1 they seem to agree that
misappropriation of trade secrets is a bad thing that the law should punish. Rather, the puzzle is a theoretical one: no one can seem to agree where trade secret law comes from or how to fit it into the broader framework of legal doctrine. Courts, lawyers, scholars, and treatise writers argue over whether trade secrets are a creature of contract, of tort, of property, or even of criminal
law.2 None of these different justifications has proven entirely persuasive.
Worse, they have contributed to inconsistent treatment of the basic elements of a trade secret cause of action and uncertainty as to the relationship between trade secret laws and other causes of action.3 Robert Bone has gone so far as to
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Among the academic treatments of trade secret law and theory, see, for example, MELVIN F. JAGER, TRADE SECRETS LAW (2007); ROGER M. MILGRIM amp; ERIC E. BENSEN, MILGRIM ON TRADE SECRETS (2008); JAMES POOLEY, TRADE SECRETS (2008); William B. Barton, A Study in the Law of Trade Secrets, 13 U. CIN. L. REV. 507, 558 (1939); Vincent Chiappetta, Myth, Chameleon, or Intellectual Property Olympian? A Normative Framework Supporting Trade Secret Law, 8 GEO. MASON L. REV. 69 (1999); David D. Friedman, William M. Landes amp; Richard A. Posner, Some Economics of Trade Secret Law, 5 J. ECON. PERSP. 61 (1991); Charles Tait Graves, Trade Secrets as Property: Theory and Consequences, 15 J. INTELL. PROP. L. 39 (2007); James W. Hill, Trade Secrets, Unjust Enrichment, and the Classification of Obligations, 4 VA. J.L. amp; TECH. 2 (1999); Edmund W. Kitch, The Law and Economics of Rights
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