Intellectual Property in the New Technological Age: 2016 - Chapters 1 and 2

Patents, Copyright and Trademark and Intellectual Property

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Mark Lemley, Peter Menell and Robert Merges


Intellectual Property in the New Technological Age: 2016, Clause 8 Publishing, 2016


These chapters of Intellectual Property in the New Technological Age: 2016 examine the justifications for intellectual property (IP) law, which includes trade secret, copyright, patent, and trademark law. Trade Secret law protects information used by a business from misappropriation.

Policy Relevance

IP law constantly changes in response to developments in the courts and in Congress. Real-life situations often call for application of more than one type of IP law.

Main Points

  • IP law, that is, legal protection for ideas, evolved later than property rights to physical things.
    • Ideas are fundamentally different from tangible property;
    • Tangible property is necessarily exclusive; if one person has it, another person cannot have it, but ideas do not have this quality.
  • Four philosophical theories influence analyses of IP law.
    • Some propose that a creator might have a natural right to protection for her ideas.
    • Some propose that creators require protection for their ideas to protect their dignity and economic autonomy, consistent with the theory of personhood.
    • Utilitarian justifications emphasize the role of IP in promoting innovation and creativity, the dominant view recognized by the United States Constitution.
    • Theories of social justice suggest examining aspects of IP law to discover if the rules promote or erode inequality.
  • Traditionally, the four main types of IP law are taught separately, but real-life situations require an understanding of all four types (and antitrust law) simultaneously, as all affect creators’ ability to get return on their investment.
    • Trade secret law protects confidential information used in a business from misappropriation.
    • Patent law gives inventors a limited period of exclusive right to develop their innovation.
    • Copyright law protects literary and artistic expressions, such as books.
    • Trademark law promotes the integrity of the marketplace by preventing marks from being used to confuse consumers.
  • Trade secret protection is based on state law; most states have adopted the Uniform Trade Secrets Act, except for New York, Massachusetts, and North Carolina.
  • A trade secret claim has three elements:
    • The information must be economically valuable, and must not be known to the public.
    • The secret’s holder must take reasonable precautions to keep it secret.
    • The information must have been misappropriated by some kind of deception.
  • Another firm can develop products that use another firm’s trade secret, if the first firm develops the knowledge independently, acquires the knowledge by reverse engineering, or obtains the knowledge by observing the item in public use.
  • One scholar proposes that Congress create a safe harbor, so that whistleblowers can disclose a trade secret in confidence to government officials to report illegal conduct.


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