trade secrets

On 2/25/97, Jamie Powers <jamie[_at_]srgpe.com> wrote:
>
> 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.
>

Among others, I would point to Religious Technology Center v. Lerma, ED Va 1995, where the court held that a Usenet newsgroup posting which was up for only 10 days entirely destroyed the secrecy of the posted information.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Thu Feb 27 1997 - 17:03:19 GMT