Joseph Fishman and Deepa Varadarajan challenge the current approach for determining misappropriation in trade secret law – which assesses whether a defendant’s end use is ‘substantially derived’ from the plaintiff ’s trade secrets. They argue the law should instead take into account the plaintiff’s and defendant’s end uses for the allegedly infringing information. They suggest that if the defendant’s end use is highly dissimilar from the plaintiff’s, the law should not, as a general matter, prohibit it.
This Response shows that the article’s thesis – that trade secret law should imitate copyright law’s willingness to permit substantially dissimilar uses of content – conflicts with trade secret law’s fundamental purpose: to protect the integrity of secret information. Trade secret law already has a doctrine that addresses many of the harms with which the authors are concerned.
Whereas Fishman and Varadarajan have turned to copyright law for help, it makes more sense to focus on improving the doctrines we already have. Improving existing doctrines will do more to ameliorate concerns about hindering innovative new uses, while maintaining trade secret law’s fundamental goals.
Hrdy, Camilla Alexandra, Should Dissimilar Uses of Trade Secrets Be Actionable (October 24, 2019). University of Pennsylvania Law Review Online volume 167: 78, 2019.