Intellectual Property

Boston College Law School

February 7, 2007

Trade Secret – Part 2

Uniform Trade Secrets Act

• §1. Definitions– (4) “Trade secret” means information, including

a formula, pattern, compilation, program, device, method, technique, or process, that:

• (i) derives independent economic value … from not being generally known to, and not being readily ascertainable by proper means ..., and

• (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Uniform Trade Secrets Act

• §1. Definitions– (1) “Improper means” includes theft, bribery,

misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means ….;

Aerial Photography

Examples: Improper Means

• Improper Means?– Observing neighbor’s laptop on airplane– Striking up a conversation w/ employee (and

making false statements about who you are)– Eavesdropping with long-distance microphone– Using a telescope to peer through windows– Going through a company’s trash in public

dumpsters

Hypo: Acquisition

• Facts– Company A wants to acquire competitor B– Company B has certain trade secrets

• Questions– What advice to give company A?– What advice to give company B?

Uniform Trade Secrets Act

• § 1. Comment– “Proper means include:

• 1. Discovery by independent invention;

• 2. Discovery by reverse engineering, …

• …

• 4. Observation of the item in public use …

• 5. Obtaining the trade secret from published literature”

Problem 2-11

• Facts– Atech makes diagnostic equipment– Alpha hires 3rd party to buy – studies it– Picks internal locks to access secrets inside

• Questions– Did Atech take “reasonable efforts”? If not,

what more could they have done?– Impact of an end-user licensing agreement?

Administrative

• Next Assignment– Finish III – Trade Secret