Re: copyright expiration as a spur to creativity

On 15 Sep 1998, Leo Smith <barter[_at_]ntplx.net> wrote:
>
> Albert Henderson <noblestation[_at_]compuserve.com> wrote:
> >
> > Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> > >
> > > There is no right to exclude another from using a trade secret.
> > > Only from misappropriating it.
> >
> > There is the right not to publish it -- de facto the right to
> > exclude. You cannot force the owner of a trade secret to publish it.
>
> While it may be the case that you cannot force the owner of a trade
> secret to publish it, in order for a defacto right to exclude to exist,
> the trademark owner must therefor have the right to exclude third
> parties with whom there is no trade secret agreement from publishing it.

How about this example.

I recall that MidAmerica Dairymen was sued by a cheese processor for "misappropriating" a trade secret that had been disclosed under a contract for manufacturing mozzarella chess using the plaintiff's procedures. Ingredients of mozzarella are pretty well defined by government labels. Under the contract they agreed that MidAmerica would forget about the procedure when it ended. They kept using the process to make and sell mozzarella chess as their own product. (Sorry I don't have cites.)

The mozzarella process may vary with the use of starters, microbial or acid, time, and temperature as well as ingredients that are basically limited to milk, rennet, and calcium that is added back to replace calcium lost in pasteurization. That doesn't leave much room for secrets.

The plaintiff (from Denver Co -- name escapes me)also held patents on making mozzarella. So whatever was secret must have been very limited.

Can you tell me, Can the owner of a trade secret sue without disclosing to the public?

> If the New York Times came up with an independant scientific method of
> analyzing Coca Cola such as to pinpoint the exact recipe of ingredients,
> could Coca Cola exlude the New york Times from publishing the research
> results in order to protect its trade secret?

They would have to prove the process as well as the ingredients, as every chef knows. I think that they would have trouble proving it was identical and not simply a false claim unless they had confirmation via "misappropriation."

Another manufacturer might arrive at the formula independantly, but he/she would not be able to call it Coca Cola and would not have the benefit of Coca Cola's distribution.

Albert Henderson, Editor, PUBLISHING RESEARCH QUARTERLY <70244.1532[_at_]compuserve.com> Received on Thu Sep 17 1998 - 02:01:25 GMT