Talk:Trade secret/Archives/2015

Page Needs Major Work

This topic is far more nuanced than is indicated by the page's content. For example, there are many definitions of "trade secret" under U.S. law, but the article points only to one, a federal criminal statute. For example, Ruckelshaus v. Monsanto Co., 467 US 986 (1984) holds that trade secrets are a property right for 5th Amendment "takings" purposes created by state law, not federal ("(W)e are mindful of the basic axiom that '(p)roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law'") (case involved trade secrets as defined in the Restatement as adopted by Missouri but not all states have adopted the Restatement). There are other definitions that depend on context. For example, a definition more favorable to public disclosure is used in litigation under the Freedom of Information Act governing trade secrets that are submitted to the government . There is yet another definition approaching in the Trans-Pacific Partnership Treaty. See leaked intellectual property chapter at Article QQ.H.8. But we have yet another definition in the TRIPS treaty. The cited 18 U.S. Code § 1839 definition applies only to two particular federal crimes (economic espionage and theft of trade secrets) set forth in 18 U.S.C. § 1831, et seq. Most (all?) states have comparable crimes plus statutes and case law on civil remedies.

And there are as yet unresolved serious questions about the constitutionality of federal legislation (and treaties) on intellectual property rights other than the Constitution's grant of authority for Congress to create patent rights and copyrights. See e.g., Paul J. Heald, Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as An Absolute Constraint on Congress, 2000 U. Ill. L. Rev. 1119 and especially its footnote 7: "Articles raising this question include Theodore H. Davis, Jr., Copying in the Shadow of the Constitution: The Rational Limits of Trade Dress Protection, 80 Minn. L. Rev. 595, 640 (1996) ("Congress cannot override constitutional limitations on its own authority merely by invoking the Commerce Clause."); Rochelle C. Dreyfuss, A Wiseguy's Approach to Information Products: Muscling Copyright and Patent into a Unitary Theory of Intellectual Property, 1992 Sup. Ct. Rev. 195, 230 ("Restrictions on constitutional grants of legislative power, such as the Copyright Clause, would be meaningless if Congress could evade them simply by announcing that it was acting under some broader authority."); Michael F. Finn, "Just the Facts, Ma'am": The Effect of the Supreme Court's Decision in Feist Publications, Inc. v. Rural Telephone Service Co. on the Colorization of Black and White Films, 33 Santa Clara L. Rev. 859, 871 (1993) ("It seems likely that the same rationale present in Gibbons would also bar any type of Commerce Clause legislation aimed at removing limitations of the Intellectual Property Clause."); John J. Flynn, The Orphan Drug Act: An Unconstitutional Exercise of the Patent Power, 1992 Utah L. Rev. 389, 414 n.81 ("The Commerce Clause and the Patent Clause should be read together as establishing an implicit policy of precluding the federal government from granting private parties unregulated and exclusive monopolies over economic activity other than that authorized by the Patent Clause."); William Patry, The Enumerated Powers Doctrine and Intellectual Property: An Imminent Constitutional Collision, 67 Geo. Wash. L. Rev. 359, 361 (1999)("When a specific clause of the Constitution, such as Clause 8 of Article I, Section 8, has been construed as containing general limitations on Congress's power, Congress may not avoid those limitations by legislating under another clause."); Malla Pollack, The Right to Know?: Delimiting Database Protection at the Juncture of the Commerce Clause, the Intellectual Property Clause, and the First Amendment, 17 Cardozo Arts & Ent. L.J. 47, 60 (1999) ("Congress may not do an end run around a limitation in one clause of the Constitution by invoking a more general clause.")." There is also a Federalism issue (separation of powers between state and federal governments because state law is the origin or the property right).

In short, this article needs some expert attention. Marbux (talk) 06:07, 15 October 2015 (UTC)