General I.P. Information (JWB)

• In addition to patents, there are three other forms of Intellectual Property in the United States
  1. Copyright – Federal
  2. Trademarks – Federal
  3. Trade secrets – State law (vary by state)
• Trade Secrets
  • 1910: “The term ‘trade secret,’ as it is usually understood, means a secret formula or process not patented, known only to certain individuals, who use it in…manufacturing, some article of trade having commercial value. It is rarely, if ever, used to denote the mere privacy with which ordinary commercial business is carried out.”
  • Property right = protection against unauthorized disclosure to others, and if it is disclosed, can receive monetary compensation
  • Torts = one is liable when he or she uses or discloses a trade secret if
    • (a) it was discovered by improper means
    • (b) the disclosure or use is a breach of confidence
    • (c) it was learned from a third person and the third party was breaching his duty
    • (d) he had notice it was a secret and disclosure was a mistake
  • Contrast with patents
    • Not protected against
      • reverse engineering
      • independently developing the same thing
    • Patents require non-obviousness, which is a fairly high standard. Trade secrets (depending on the state) can only be marginally removed from common knowledge
    • No filing requirements, etc.
  • bottom line: if your company has a secret that has some value, and you make an effort to keep it a secret, then you have a property right to it
• Copyrights
  • Title 17 U.S.C.
  • Covers “original works of authorship…fixed in a tangible medium”
  • Exceptions include parodies, satires, personal use (burnt CD’s, etc)