Protecting Business Secrets in National and International Commerce

Abstract

This article argues for elevating trade secrets from stepchild to full member of the intellectual property family. The case for doing so rests on sound social policy, empirical evidence, case law, and anecdotal stories that have attained a great deal of media attention. The article describes how the changing U.S. domestic legal environment for protecting trade secrets is influencing practices within a distinct community of business concerns that owns trade secrets. The author surveyed New Mexico manufacturers and asked them whether they owned trade secrets, how they protect their trade secrets, and whether their trade secrets have ever been stolen. The survey revealed that manufacturers doing business in multiple jurisdictions are more likely to own trade secrets, to protect their trade secrets by having employees sign secrecy agreements and covenants not to compete, and to have had their trade secrets stolen. Nevertheless, these manufacturers rarely resort to the legal system to redress trade secret theft. Further, the article examines the many changes in international treaties that protect trade secrets and suggests that domestic and international economics will profit from increased trade secret protection because protecting undisclosed information increases the need for independent scientific investigation and thus augments the number of choices available to consumers.