ABSTRACT
Trade secret law places more scrutiny on a party’s intent – what it was thinking, what it considered, or what it should have considered – than other categories of intellectual property law. At inflection points across a range of possible disputes, the law inquires into the mindset of one party or the other. Embedded in the federal and state statutes is a legislative intent that absent wrongful intent – or at least constructive knowledge – there can be no misappropriation.
This focus on a party’s state of mind comes as no surprise. Because trade secret rights are not registered with any government agency, there is no formal means by which they can be identified in advance. One encounters a trade secret in the wild, so to speak, and one may not always recognize it as such. There are no monopolies in trade secrets, and thus one may receive the same information from more than one source, rendering recognition of trade secret rights more difficult. For sound reasons, then, trade secret misappropriation is not a strict liability wrong …
Charles Tait Graves, Intentionality in Trade Secret Law (2024) 39 Berkeley Technology Law Journal 721.
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