Intellectual Property
University of North Dakota School of Law
Meyers, Brad

Intellectual Property
–          Theories of ip =
·         natural rights = john locke; fair return on labor
o        can’t protect things that take away from others…ie oil not protected b/c if you take more, there’s less for others…but grass is okay b/c if protected, others are not deprived
o        can’t protect things that can be depleted
o        can get protection as long as there’s “as much, and as good” for everyone else and as long as you make an effort (effort makes it yours)
o        labor/hard work is rewarded
o        used more in patent and trademark realm, instead of copyright
o        would be more sympathetic to orig inventor v. patent troll
·         personhood = georg hegel; personal flourishing
o        ideas are extensions of personality
o        can get protection for your own ideas for this reason
o        used more in copyright realm, than patent or trademark
o        would be more sympathetic to orig inventor b/c patent is extension of their personality and patent troll would have nothing to do with it
o        dominant in eastern Europe and south america
·         social planning = william fisher; create a better future
o        ip system should promote some societal goal
o        system w/ incentives encourages more creation
o        pick goal first, then build system around that goal
·         utilitarian = john stuart mill; maximize aggregate utility, eg pareto efficiency
o        think in terms of economic growth
o        just make sure no one is worse off (in some measurable way) than before
o        want as much good as possible for society as a whole
o        genie coefficient = measures economic disparity among a social group
o        positively pareto efficient makes sure everybody’s boat rises a little
o        dominant in US and western Europe
o        utilitarian = protecting against theft of info encourages investment in such info; trade secrets are a form of property
–          came from ancient roman law called “action servi corrupti” (action of corrupting a servant) to prevent 3rd parties from corrupting other people’s slaves through bribery, etc. to get confidential info about their owners…damages were twice the value of whatever was stolen
–          also came from European businesses—especially guilds (specialized industries)…govt protection for secret processes and ideas
–          early 19th c = misappropriation of trade secrets as a cause of action in Britain and the US
–          tort = improper use or disclosure of trade secret
–          comes from state law, not federal
–          3 elements of trade secret claim:
1.       subject must qualify for trade secret protection
2.       plaintiff, or holder of secret, must have taken reasonable precautions to prevent disclosure of secret
3.       defendant must have acquired trade secret wrongfully; misappropriated
–          2 theories of legal protection for trade secrets:
1.       utilitarian = protecting against theft of info encourages investment in such info; trade secrets are a form of property
2.       tort theory = aim is to punish and prevent illicit behavior
–          45: restatement of torts—6 factors in considering whether info is a trade secret:
1.       extent to which info is known outside the claimant’s business

except by the use of improper means, there would be difficulty in acquiring the info”
§   “we conclude that a holder may divulge his info to a limited extent w/o destroying its status as a trade secret”
–          treatment of public info is the salient difference between torts of misappropriations and trade secret…public info not subject to trade secret b/c DUH, it’s not a secret
–          tort of misappropriation = can misappropriate public info if don’t give original source, like plagiarizing
–          actually known v. merely knowable information = Rohm & Haas v. Adco (source of info can be decisive)
reasonable efforts
–          Rockwell v. dev =
§         “if trade secrets are protected only if their owners take extravagant, productivity-impairing measures to maintain their secrecy, the incentive to invest resources in discovering more efficient methods of production will be reduced, and with it the amount of invention…”
§         don’t have to build a wall around product, just take reasonable efforts
§         if too extreme measures taken, there will be less frequent innovation, but it’s more likely there will be few great innovations, rather than more good ones
–          Cf electro-croft v. controlled = minimum protection efforts
–          Cf data general v. Grumman = importance of contracts