Keeping trade secrets

Published: June 25th, 2009

Category: Spotlights

Elizabeth A. Rowe

Elizabeth A. Rowe

Associate Professor of Law
Levin College of Law

What do the Coca-Cola formula, Google’s search engine algorithm and Kentucky Fried Chicken’s Original Recipe have in common?

All are highly guarded trade secrets – confidential, mission-critical business information that gives their owners a winning edge over the competition. But what protections can a trade secret owner expect when his secret isn’t secret anymore?

“The critical issue regarding a trade secret is that it must remain secret,” said Elizabeth A. Rowe, an associate professor at the Levin College of Law. “Once it’s publicly disclosed, it’s no longer a trade secret and its protections are lost forever.”

Rowe points out that, unlike a patent or copyright, both of which continue to enjoy legal protection even after they have been infringed, trade secrets are fair game for anyone to use once they’ve become public. She says the best course of action a business can take to preserve its trade secrets is to adequately protect the secret in advance of an information breach – no mean feat in this age of the World Wide Web.

“The Internet poses many challenges to preserving trade secrets, particularly in the employment context, which is where most of these cases arise,” Rowe said. “Most trade secrets are stored on the computer, so you can copy hundreds of pages in seconds. Not only can you copy them, you can widely distribute them – you can e-mail them or post them to a Web site – all the while undetected and sitting at your desk at work.”

It’s the human face of trade secret law that most intrigues Rowe. After earning her master’s degree in sociology from the University of Florida and graduating cum laude from Harvard Law School, Rowe entered private practice in Boston, focusing on intellectual property litigation and employment litigation. Her interest in trade secret law arose from her representation of corporate clients seeking to protect intellectual property from workplace theft.

“When it comes to protecting trade secrets, the weakest link for any company is its employees,” Rowe said. “It’s really the human beings in the workplace who are trusted with confidential information who are most likely to misuse or misappropriate it, whether it’s for their own personal gain, for the benefit of a competitor, or because they’re disgruntled and seeking vengeance.”

Now as an academician, Rowe’s research explores this dynamic combination of human and technological variables impacting trade secret disclosures. She’s also interested in how the law and the courts can better address emerging issues in trade secret law caused by rapidly evolving technology. Her many law review articles on the subject will soon be joined by a case book she’s writing, the first to be exclusively devoted to trade secret law.

“We have these old paradigms about what intellectual property is and how we create, protect and preserve it,” Rowe said. “Now, however, we have new technology which creates its own set of unprecedented circumstances, and we find gaps when the two come together. Legal research in these areas can provide guidance to the courts on how to fill those gaps.”

Photo credit: Ray Carson — University Photography

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