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The Surprising Virtues of Treating Trade Secrets as IP Rights1



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Trade Secrets as IP Rights Lemley DRAFT The Surprising Virtues of Treating Trade Secrets as IP Rights1 Mark A Lemley2 Trade secret law is a puzzle Courts and scholars have struggled for over a century to figure out why we protect trade secrets The puzzle is not in understanding what trade secret law covers there seems to be widespread agreement on the basic contours of the law Nor is the problem that people object to the effects of the law While scholars periodically disagree over the purposes of the law and have for almost a century 3 they seem to agree that misappropriation 1 2008 Mark A Lemley 2 William H Neukom Professor Stanford Law School of counsel Keker Van Nest LLP Thanks to Wendy Gordon Tait Graves Rose Hagan David Levine Roger Milgrim Michael Risch and Peter Swire for discussions of these issues or comments on a prior draft This paper does not address perhaps the most divisive issue facing the law of trade secrecy whether it is trade secret law 5983 cites in Westlaw s allcases and tp all databases combined or trade secrets law a mere 2144 cites Westlaw search conducted Feb 15 2008 I use trade secret throughout who am I to argue with 73 6 of all courts and commentators but that doesn t mean I m taking a definitive position on the issue 3 Among the academic treatments of trade secret law and theory see e g Melvin Jager Trade Secrets Law Roger Milgrim Milgrim on Trade Secrets James H A Pooley Trade Secrets Edmund W Kitch The Law and Economics of Rights in Valuable Information 9 J Legal Stud 683 1980 Christopher J Rebel Pace The Case for a Federal Trade Secrets Act 8 Harv J L Tech 427 435 42 1995 David D Friedman et al Some Economics of Trade Secret Law 5 J Econ Persp 61 1991 Gale R Peterson Trade Secrets in an Information Age 32 Hous L Rev 385 1995 Edmund W Kitch The Law and Economics of Rights in Valuable Information 9 J Legal Stud 683 1980 David S Levine Secrecy and Unaccountability Trade Secrets in Our Public Infrastructure 59 Fla L Rev 135 2007 William B



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