Ethics of Inventing: Trade Secrets

 

 

• intellectual property that is in the form of a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known or reasonably ascertainable by others, and by which a person or company can obtain an economic advantage over competitors.

• protected by Federal Law since 2016 (prior by only States) - see Defend Trade Secrets Act

• exclude others from knowing and hence using the trade secret

Factors

 

• 6 factors are commonly considered when analyzing a trade secret.

  1. How extensive knowledge of the secret is to people in the same industry or the general public. If the information is well known, then it isn't really secret.

  2. The conditions surrounding knowledge of the secret in the secret-holder's business. One important method of keeping a trade secret is to ensure that only those employees that need to know the secret know it. In addition, the secret-holder should endeavor to secure legal protections over the knowledge of the secret, such as a non-disclosure agreement, in the employment contract.

  3. The measures that the secret-holder has taken to maintain secrecy. The secret-holder must make reasonable efforts to ensure that the secret stay secret. This differs from the previous factor in that it is address overall security measures of the business, such as file encryption, alarm systems, and guards. Furthermore, if the secret cannot be completely protected with reasonable means, this factor will be forgiven to some degree. 

  4. The value of the secret information. If the secret has little or no commercial value the secret will not be protected.

  5. The nature of the information itself. If the information itself is of a special nature, such as the famous trade secret ingredient list for Coca-Cola, then it will be afforded a greater measure of protection. Also, if the secret-holder expended a considerable sum to create the secret, it is more likely to be protected.

  6. The difficulty for others to legally replicate the secret. If the information could be easily replicated, then the protection afforded to it will be less.

   

Computer Science and Trade Secrets

• Interesting cases

  • AI and TradeSecrets

  • 706 million dollar award --for misappropriation of trade secrets related to real estate data anlaytics

 

Trade Secret or Patent --think carefully

 

• Patent Act includes the doctrine of Abandonment/Suppression/Concealment. Patent laws are intended to reward inventors who disclose their inventions to the public. If an invention is being suppressed or concealed, and another person invents and patents it, then the suppressor will be unable to stop the patent.