Trade secrets enable corporate piracy and disproportionally harm marginalized communities.

I. IP-SJ Considerations with Respect to Protecting Trade Secrets Generally

Trade secret protection can serve empowerment because the costs of creating and protecting a trade secret are often only marginally greater than the costs of developing and implementing the secret information; anyone with an economically valuable secret can exploit it simply by using it commercially and taking reasonable steps to keep it secret. The use of trade secrets and the provision of legal protection for them can thus be empowering at a low cost – at least compared to the cost of obtaining a patent. Furthermore, the breadth of subject matter eligible for trade secret protection renders this form of IP development and exploitation available to virtually everyone. In addition to typical commercial information such as manufacturing processes, secret chemical formulas, and marketing strategies, trade secrets can include secret cooking recipes, home remedies, and hair and nail care techniques. Any commercially usefully information not generally known to people in the discipline is eligible for protection.

While providing IP protection to trade secrets can be empowering, the secret nature of trade secrets can also limit empowerment of others because a trade secret, by its very nature, reduces access to the information kept secret, thereby excluding others from using it unless they can develop it themselves independently. This limitation is particularly important in fields where significant technical expertise is required as in certain processes for producing specialized drugs or materials or in the burgeoning field of artificial intelligence. The impact on such marginalized groups through excluding them from benefiting from using the secret itself (as distinguished from being able to obtain the benefits of the fruits of it the same as others can) is greater than on those with the resources lawfully to discover the secret by reverse engineering or by independent research, or on those with the wherewithal to pay for a license to exploit the secret. As the frontier of many types of technological innovation increasingly depends on ever-greater sophistication and resources, the limitations concomitant to trade secret protection in the tech sector become increasingly significant and worthy of careful, detailed examination.

Protecting trade secret IP rights requires owners of the trade secrets to take reasonable steps to keep the information secret. Generally, this is not an onerous requirement. Use of passwords for access, keys for locked files, limiting sharing of the information to those who need to know, nondisclosure agreements with employees and licensees, and, where permitted, covenants not to compete for employees, are typical steps taken.

Limiting access physically or through electronic means implicates few IP-Social Justice concerns separate from concerns that arise with respect to trade secrets generally. Nonetheless, social justice concerns such as exclusion and bias against certain groups in employment could differentially limit those in the group discriminated against from learning to use the trade secret or even about the value of trade secrets more generally. Being attentive to the potential for hidden bias or a structural arrangement that excludes members of traditionally marginalized groups is warranted whenever access to trade secret information is limited because that information can be empowering both for advancement in a business or as a way for a person to contribute to the value of the trade secret if known to that person.

The growing practice of having all employees execute covenants not to compete in order to protect trade secrets is problematic from an IP social justice perspective insofar as they disempower employees, even those not directly concerned with knowing or using the trade secrets, from changing jobs and using the general, unprotectable knowledge and skills they developed on the job to advance themselves by changing jobs. The expanded and unjustified use of covenants not to compete to protect trade secrets is a collateral effect of the push to protect secrets to the maximum extent possible and to expand the reach of trade secret protection into unprotectable know-how. Fortunately covenants not to compete are often not enforced according to their express terms because of their restrictive effect. Nonetheless, employers are induced to use them even with unenforceable provisions because they still reduce employee mobility and can chill former employees’ use of unprotectable know-how in their new employment setting because of the threat of the employer against employees and former employees. The threat itself can be enough just because of the costs of contesting the contract provisions in court. The fuzziness of the line between protectable trade secret and general know-how exacerbates this particular problem.

When a business either needs to or for business reasons wants to disclose its trade secrets to another, e.g., to a company that will manufacture the material object which depends on the trade secret or to a company that could develop an idea into an operational app for various platforms, additional IP-SJ concerns should be addressed. The typical means of protecting the trade secrets in such settings is through licensing and nondisclosure agreements. Licenses should be narrowly construed to not permit an overly expansive view of the trade secret and the steps needed to protect it. Attempts to protect information that is merely unprotectable know-how past the term of the license should be carefully limited.