Posts by: Editorial Board

HALLOWEEN EDITION: Cookie Maker Gets Early Treat when Court Protects Halloween Cookie Recipe as a Trade Secret

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In September 1995, Philadelphia-area cookie manufacturer Sweetzel, Inc. got an early Halloween treat when the U.S. District Court for the Eastern District of Pennsylvania found that the company’s cookie recipes and customer lists constituted trade secrets, and granted an injunction against Sweetzel’s competitor.  The dispute centered on Sweetzel’s “Spiced Wafers,” which are sold on a limited basis during the Halloween season and have been celebrated as a local food tradition that traces its roots to colonial times.

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Fracking Trade Secret Rules: A Tug of War Without Winners

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In the approximately 31 states with known reserves amenable to hydraulic fracturing, or “fracking,” a tug of war is being waged between an oil and gas industry seeking to protect its proprietary processes and environmental groups that want to know the secret sauce.  Because fracking was carved out of federal oversight in 2005, determining where the balance lies has been left to the states.  Not surprisingly, consensus is not the order of the day.  Trade Secrets Watch prepared a state-by-state chart that highlights the key provisions of the states currently requiring disclosure.  To view the chart, click here: flipbook / PDF.

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Oktoberfest Edition! Beer and Trade Secrets

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Yes, we know the real Oktoberfest takes place primarily in September, and, yes, this post has nothing to do with Germany or celebrations or even fun.  But this time of year presented a good excuse to write about the intersection between trade secrets and beer.  So here you have it:  three moments when trade secret law and beer came together to produce this blog post.

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This Day in Trade Secrets: In October 1859, New York Marble Maker Sues Over Disclosure of Marbleizing Methods

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One hundred and fifty-four years ago this month, New York marble marker Egbert Deming sued Ezra Chapman, seeking to prevent him from disclosing a secret method for making artificial marble.  Chapman had agreed in writing not to disclose the secret, but sought to get out of his promise.

Although marble has been used in sculpture for millennia, it appears that the method of making artificial marble in question was, at that time, relatively new.  The court observed that, at least according to the defendant, “the art of making artificial marble” was invented by “a person of the name of Hardinge” (possibly Benjamin Hardinge), who, in 1850, communicated the secret method to Williams, who later communicated that method to Deming.

The case is interesting because it shows how courts initially grappled with some fundamental questions that are now more routinely addressed in trade secret cases: READ MORE →

Upcoming Trade Secrets Events

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Attention Bay Area TSW readers: We’ve spotted three exciting trade secrets events coming up in the next month. Even if you’re not based in Silicon Valley, you may want to plan on visiting in October just to attend. Hope to see you there!

Trade Secrets Watch Profiled in Page-One Article on Law Firm Blogs

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Thanks to you, readers, less than three months after its launch, Trade Secrets Watch drew the notice of California’s leading legal weekly.  The Recorder put us on Page One as an exemplar of the growing trend of law firm-written blogs that take an engaging but journalistically serious approach to legal issues.  You can see a web version of the article here.  We’ve also copied it below: READ MORE →

GERMAN TRANSLATION: Making Sense of Germany’s Criminal and Civil Trade Secret Laws

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Germans are famous for their love of order.  But German trade secret law is untidy.  Like many EU countries and like the United States, Germany has no national trade secret law per se.  Its criminal and civil laws provide for broad trade secret protection — if you know how to navigate them.

A quick primer on Germany’s trade secret laws is available here.

GIVE AND TAKE: Lofgren’s Twin Trade Secret Bills Would Curtail Actions Under One Law, Expand Them Under Another

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When Rep. Zoe Lofgren, the Silicon Valley Democrat, introduced a pair of bills last month on trade secret misappropriation, we puzzled over her purpose.  Was this a response to the White House’s call for improved federal legislation to protect U.S. trade secrets?  Did the measures mark the start of a comprehensive federal civil “Trade Secrets Act” that would put trade secrets on par with other federally protected intellectual property such as patents, trademarks, and copyrights?

Trade Secrets Watch decided to investigate and tapped our congressional sources for the back story.  Turns out our musings were wrong.

First, a quick backgrounder on federal trade secret protection (and lack thereof): The federal government has declined to go all-in on protecting U.S. trade secrets, leaving this area primarily governed by state law.  When it comes to trade secrets, federal law consists of a patchwork of acts that leave yawning gaps in legal protection.  For example, the federal Economic Espionage Act, known as the EEA, prohibits trade secret theft but is solely a criminal law — it doesn’t provide for a federal civil cause of action (i.e., a right allowing private parties to sue).  And the Computer Fraud and Abuse Act, known as the CFAA, only covers certain types of thefts involving unauthorized access to computers.  It provides for criminal prosecution and grants a victimized company the right to sue.  But in a case last year (United States v. Nosal), the Ninth Circuit U.S. Court of Appeals interpreted the CFAA narrowly, finding that it was primarily intended to curtail hacking and that it does not bar employees from stealing trade secrets from their employers’ computers in more run-of-the-mill cases of trade secret theft.  READ MORE →