The Law of Intangible Assets: The Philosophical Underpinnings of Trade Secret Law in the United States

摘要

While some critics find trade secret law to be a befuddling bundle of legal concepts that lack an independent legal basis and instead draw upon such ingrained legal principles as torts and contract, the proponents of trade secret law readily discern a great benefit that trade secret law affords to businesses in the economy. The proponents maintain that the lack of trade secret law's independent legal basis should not militate against its existence. On the contrary, trade secret law's powerful incentive to innovation, stabilization of business relationships, and economic stimulation should put all doubts about trade secret law's existence beyond question. Instead, the focus of inquiry on trade secret law should be on the potency of its legal remedy against trade secret misappropriations by employees and third party competitors. Neither contract nor tort law by itself can afford an adequate deterrent against trade secret misappropriations because these bodies of law merely serve as enforcement devices that nonetheless represent an essential supplement to trade secret law. Despite their intangible nature, trade secrets need to be recognized as property, a la Locke, for at least two reasons. First, recognizing trade secrets as property instills a strong sense of limits inherent in the concept of ownership. Second, the concept of ownership rests on the universally recognized principle of acquiring any type of asset through investing time and labor in the development of a given product, service, or method. Only when trade secrets are widely recognized to be property can there be clear expectations of business and employee behavior, creating respect for the assets that belong to another.