Re: RE: NBA v. Motorola

I have to disagree with Mark Lemley's assertion that some line exists in trade secret law based on the number of parties made privy to the secret. If I enter into contracts with 5 million people to provide them access to my trade secret, absent other facts, the asset remains protected. To maintain protection, you must meet and continually adhere to the general test of a trade secret: 1) Some method/thing which confers a competitive advantage, 2) is not generally known in the area of application where the economic advantage is derived, and 3) is subject to my reasonable efforts to keep secret.

If the thing/process is readily discoverable from observation, and you don't address this in your agreements with parties having access to the secret, then you fail the "reasonable protection" prong (3). I have not come accross cases that hold a trade secret may be lost merely because of the number of parties given access to it. I do agree, however, that at a certain point, mass dissemination of a claimed secret could work so that you might not be able to meet the first or second prongs of the test - either it would no longer confer a competitive advantage or it would cease to be a secret in the relevant industry.

Jamie Powers
<jamie[_at_]srgpe.com> Received on Tue Feb 25 1997 - 16:38:48 GMT