I. Trade Secret Law
A. Sources
1. Rest. 3d of Unfair Competition
(a)
A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.
2. Rest. of Torts Factor Test
(a)
(b)
(c)
(d)
(e)
(f)
Ease/difficulty with which info could be acquired or duplicated by others.Amount of effort/money expended in developing the info,Value of info to the business and competitors,Extent of measures taken to guard secrecy,Extent to which it is known by employees and others in business,Extent to which info is known outside claimant’s business,
3. UTSA
(a)
Does not require continuous use
B. Elements
1. Information of independent commercial value, from
2. Not being generally known,
3. Not readily ascertainable, and subject to
4. Reasonable efforts to maintain secrecy.
C. Reasonable efforts
1. Physical Security
(a)
Inside/Outside
2. Notice of Confidentiality
(a)
(b)
Labels/StampsAgreements
3. Perception of Secrecy
4. Industry Standard
5. Circumstances of Prior Disclosure
D. Subject Matter
1. Formula, device, pattern, compilation, method, technique or process.
E. Misappropriation
1. Improper Means
(a)
Standards of business morality.
2. Breach of Fiduciary Confidentiality
(a)
(i)
Licensing? Be sure you get an agreement.
(b)
ImpliedExpress
F. Allowed
1. Reverse En
relationship.
2. Independent Discovery
3. License
4. Observation (from a lawful vantage)
5. Non-confidential source
G. Departing Employees
1. Can take general knowledge and skill, but not TS.
H. Remedies
1. Restitution
2. Restoration
3. Injunction
(a)
(b)
(c)
(d)
If unreasonable/impossible, condition future use on reasonable royalty.PermanentPreliminaryTemporary
4. Reasonable Royalty
5. Damages
(a)
(i)
(ii)
·
Unjust Enrichment
Infringer’s profitsLost profits
(b)
(i)
if willful and malicious misappropriation.
ExemplaryCompensatory
6. Criminal
(a)
Theft
II. Patent
A. Types
1. Utility
2. Design
(a)
Ornamentality
3. Plant
4. All share: Novelty and Nonobviousness.
B. Elements
1. Patentable Subject Matter
2. Utility
3. Novelty
4. Nonobviousness
5. Written Description
(a)
(b)
Best modeEnablement
C. Elements in Detail
1. Patentable Subject Matter. §101.
2. Utility
(a)
(b)
(c)
(d)
(i)
(ii)
(iii)
Mathematical algorithmsAbstract ideasLaws of nature
(e)
(i)
(ii)
(iii)
Be beneficial.Do that function,Have a function,
(f)
Must be operable; not good or even safe.Must:NOT:Improvement (blocking)ProcessProduct
(g)
Must be credible; not for perpetual motion machine.
