Friday, July 12, 2013

Fromer on a 19th-Century Trade Secrecy Case

Jeanne C. Fromer, NYU Law, has posted A Legal Tangle of Secrets and Disclosures in Trade: Tabor v. Hoffman and Beyond, which is forthcoming in Intellectual Property at the Edge: The Contested Contours of IP, ed. Rochelle Cooper Dreyfuss and Jane C. Ginsburg  (Cambridge University Press, 2013).  Here is the abstract:
In this book chapter, I explore an early trade secrecy case from New York, Tabor v. Hoffman, decided in 1889. A study of this case indicates that many present-day concerns about overlapping edges between trade secrecy and patent laws — and their interaction and interference with one another's aims — were latent, if not overtly raised, when American courts were just beginning to articulate the common law right of trade secrecy. After telling Tabor’s tale, I investigate some of the longstanding interactions and tensions between trade secrecy and patent laws, through the lens of the regimes’ encouragements of disclosure in some ways and secrecy in others. Moreover, even though trade secrecy law is predominantly focused on secrecy, in some ways it enables disclosure. By contrast, although patent law is preoccupied with disclosure, in some ways, it permits and encourages secrecy. In all, patent law and trade secrecy together create a legal tangle of secrets and disclosures in trade. A full review of the Tabor case suggests that the innovator there was able to take advantage both of trade secrecy’s disclosures and patent law’s secrets. The court did not appreciate this possibility, instead focusing on the unfairness to the plaintiff of the defendant’s appropriation.