Lemley, Mark A. --- "The Surprising Virtues of Treating Trade Secrets as IP Rights" [2011] ELECD 546; 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 5

Section Title: The Surprising Virtues of Treating Trade Secrets as IP Rights

Author(s): Lemley, Mark A.

Number of pages: 31

Extract:

5 The surprising virtues of treating trade
secrets as IP rights
Mark A. Lemley*


INTRODUCTION

Trade secret law is a puzzle. Courts and scholars have struggled for over
a century to figure out why we protect trade secrets. The puzzle is not in
understanding what trade secret law covers; there seems to be widespread
agreement on the basic contours of the law. Nor is the problem that people
object to the effects of the law. While scholars periodically disagree over
the purposes of the law, and have for almost a century, they seem to agree
that misappropriation of trade secrets is a bad thing that the law should
punish. Rather, the puzzle is a theoretical one: no one can seem to agree
where trade secret law comes from or how to fit it into the broader frame-
work of legal doctrine. Courts, lawyers, scholars and treatise writers argue
over whether trade secrets are a creature of contract, of tort, of property,
or even of criminal law. None of these different justifications has proven
entirely persuasive. Worse, they have contributed to inconsistent treat-
ment of the basic elements of a trade secret cause of action, and uncer-
tainty as to the relationship between trade secret laws and other causes
of action. Robert Bone has gone so far as to suggest that this theoretical
incoherence indicates that there is no need for trade secret law as a sepa-
rate doctrine at all. He reasons that whatever purposes are served by trade
secret ...