Michael Risch

Trade Secret Law and Information Development Incentives

Trade secrets differ from other forms of intellectual property in many subtle ways that affect incentives to invest in information development. These differences relate not only to the types of information protected, but also to the requirements one must meet to protect that type of information. The various divergences and intersections of trade secret laws with other intellectual property laws lead to differences in the amount and types of investments companies make in developing information. This chapter explores five types of differential incentives associated with trade secret law: - Trade secret law v. no trade secret law- Trade secret law v. patent law- Trade secret law v. copyright law- Trade secret law v. trademark law- Trade secret law v. right to privacyTrade secret law provides little incentive to innovate as compared to a world without trade secret law for two possible reasons. First, the law provides little incentive because companies will create secret information even in the absence of the legal protection - trade secret law provides little protection that self-help protection does not. Second, the value of shared information means that nominal secrets would otherwise be shared, such that trade secret laws are routinely disregarded in investment decisions. This chapter explores each of these alternate theories, as well as limits and exceptions to each.Trade secret law does, however, provide some incentives to innovate vis a vis other types of intellectual property, although the incentives are not always obvious, intuitive, or necessarily great. This chapter considers how trade secret law differs from other types of intellectual property laws, and uses those distinctions to show that trade secret law will have some effect on incentives to innovate when compared to other forms of protection.

Framing the Patent Troll Debate

The patent troll debate has reached a fevered pitch in the USA. This editorial seeks to frame the debate by pointing out the lack of clarity in defining patent trolls and their allegedly harmful actions. It then frames the debate by asking currently unanswered questions: Where do troll patents come from? What are the effects of troll assertions? Will policy changes improve the system?

Response to ‘pervasive sequence patents cover the entire human genome’

A response toPervasive sequence patents cover the entire human genome by J Rosenfeld and C Mason. Genome Med 2013, 5:27.See related Correspondence by Rosenfeld and Mason, http://genomemedicine.com/content/5/3/27 and related letter by Rosenfeld and Mason, http://genomemedicine.com/content/6/2/15

An Empirical Look at Trade Secret Law's Shift from Common to Statutory Law

Like many of its unfair competition brethren, trade secret law developed in the courts of England and the United States. In 1979, the Uniform Trade Secrets Act, affectionately known as the UTSA, was introduced. The UTSA has since become widely adopted - forty-six states now follow it.The UTSA did not represent a complete break from the common law, and there is a lingering influence of the common law over core aspects of trade secret law, even when that law conflicts with newer statutory provisions. Anecdotal studies have considered the continuing influence of the common law, but, to date, no study has comprehensively or empirically tested whether and how courts rely on the common law in spite of the shift to a uniform statute.This chapter, a contribution to a book on IP and the common law, is an empirically driven attempt to understand the continuing role of common law definitions and rules after adoption of the UTSA. The methodology was straightforward: gather observable data about the statutory and case law that courts rely on to decide trade secret cases. The result is a positive account of the common law’s influence on courts applying the UTSA. While this study is normatively agnostic, the potential normative implications are apparent. If the UTSA is considered the better policy, and courts follow the common law rather than the UTSA, then courts are not implementing better policy - or vice versa.The chapter by begins by briefly describing the shift from a common law definition of trade secret misappropriation to a statutory one. The remainder of the chapter develops a model to describe and test some descriptive questions that arise from the shift: Do courts follow the UTSA? When are they more likely to? Which courts are more likely to? What factors affect whether a Court will cite cases that follow the UTSA rather than the common law? These questions are answered through categorical analysis as well as a probit estimation.

IP and Entrepreneurship in an Evolving Economy: A Case Study

What if you built an intellectual property clinic and hardly anyone came? This brief book chapter is a case study of the first two years of a new entrepreneurship law clinic in an evolving economy: West Virginia. While the clinic had entrepreneurial clients, those clients had developed little intellectual property.This chapter takes a closer look at the chicken-and-egg problem of knowledge development in an evolving economy, and concludes that law clinics can only support IP growth - they cannot create it on their own. The chapter then generalizes from the experience to suggest ways that law clinics can support their entrepreneurial communities while assisting in intellectual property growth.The chapter and book are part of the Creativity and the Law series.