Trade Secret
A trade secret consists of any confidential formula,
device, or piece of information which gives its holder a
competitive advantage so long as it remains secret.16 Anexample would be the formula for Coca-Cola®. Trade
secrets can include information that is not novel enough to
be subject to patent protection, or not original enough to
be protected by copyright (e.g., a database of seismic data
or customer lists). Trade secret laws are used to prevent
“misappropriations” of the trade secret, or to award damages
for such misappropriations.17 Trade secrets are protected
under state law, although recent federal law has
been enacted to prevent theft of trade secrets.18
Trade secret protection is obtained by declaring that
the details of a subject are secret. The trade secret theoretically
may last indefinitely, although disclosure, reverseengineering,
or independent invention may destroy it.
Trade secrets can protect secret information and processes,
e.g., compilations of data and maps not protectable by
copyright, and can also be used to protect software source
code not disclosed and not otherwise protectable by
patent. One disadvantage of relying on trade secret protection
is that a competitor who independently invents the
subject of another’s trade secret can obtain a patent on the
device or process and actually prevent the original inventor
(the trade secret holder) from using the invention.