US Trade Secrets

'Trade Secrets – A Detailed Analysis of Domestic and Global Challenges' by David E Nevins comments

The vast development of the recognition of trade secret rights from roots in English common law to the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) has ensured that the topic has recently been subject to intense scrutiny. Over the past thirty-five years, trade secret protection has become an essential method for companies to regulate their own respective proprietary information, in place of a backdrop of law. This development was recognized at the legislative level by the enactment of the Uniform Trade Secrets Act (first in 1979, and again in 1985), whereby states were free to modify or omit sections of the text. Nevertheless, the implementation of what was aimed to be a uniform piece of legislation has not gone accordingly. Debates surrounding the status of trade secrets as either a tort or intellectual property (akin to patents, trademarks, and copyrights) have affected the efficiency of the UTSA as a uniform code. To accompany this dilemma, restrictive covenants (accompanied by various doctrines) and confidentiality agreements have also affected how the UTSA is interpreted at a judicial level. Additionally, the enactment of the Economic Espionage Act has criminalized the misappropriation of trade secrets (under certain conditions). The federal legislation has exposed flaws in maintaining trade secret legislation at state level, criminalizing what is a civil violation has created a vacuity in the area of trade secret litigation. To add to this, the United States is a signatory to the TRIPs agreement. The lack of civil federal legislation raises many issues concerning whether the U.S. is satisfying its obligations under the Agreement, and as such, may hinder efforts to influence the policies of China and the European Union, especially. The objective of this academic research is to analyze the status of trade secrets as a category of intellectual property, insofar as how the UTSA distinguishes between trade secrets and confidential information, and how restrictive covenants and contracts exist to protect trade secrets outside the sphere of the legislation. This study will also analyze the flaws in the other categories of legislation that currently exist. Underlying these studies will be the contention that a civil federal trade secrets act can rectify a great deal of problems that are currently preventing uniformity within the US, and preventing satisfaction of external obligations.