Denicola, Robert --- "The Restatements, the Uniform Act and the Status of American Trade Secret Law" [2011] ELECD 543; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 2

Section Title: The Restatements, the Uniform Act and the Status of American Trade Secret Law

Author(s): Denicola, Robert

Number of pages: 28

Extract:

2 The Restatements, the Uniform Act and
the status of American trade secret law
Robert Denicola*


I. INTRODUCTION

Patents in America are governed exclusively by federal law. Federal
control over copyrights is only slightly less complete.1 Trademark law
remains a mixture of federal law and state statutory and common law
protection, but the federal scheme clearly predominates.2 Trade secret
law, however, is state law.3 For most of its history trade secret law was
also common law, consisting of a gradual accretion of precedents arising
through the resolution of disparate disputes between owners and users of
alleged trade secrets.4 As a creature of state law, it was never quite accurate
to speak of the law of trade secrets; there were instead numerous trade
secret laws produced as courts in separate jurisdictions experimented with
the theories and scope of protection for confidential business information.
In some places, and at some times, decisions put emphasis on the property


* Margaret Larson Professor of Intellectual Property Law, University of
Nebraska.
1
Under the pre-emption provision in the federal copyright act, only `works of
authorship not fixed in any tangible medium of expression' remain open to state
copyright protection. 17 U.S.C. § 301(b).
2
Trademark registration under the federal Lanham Act, for example, allows
trademark owners to secure rights in a mark earlier than under state law, 15 U.S.C.
§ 1051(1), and can substantially increase the geographic scope of protection. Id. §
1057(c). It also enables the ...