The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research

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  1. 6 points, SCA Band 3, 0.125 EFTSL
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  3. View The Law And Theory Of Trade Secrecy A Handbook Of Contemporary Research

This unit teaches the fundamental principles of patent law and the laws that protect trade secrets in an interactive manner and with recourse to both legal and practical materials that aid understanding and appreciation of the underlying concepts and policy issues. Skip to content Skip to navigation. Search the Handbook Search. Faculty Law Chief examiner s Professor Ann Monotti Quota applies Postgraduate programs are based on a model of small group teaching and therefore class sizes need to be restricted.

Unit guides Term 3. This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships. The editors introduce the long tradition of trade secrecy protection and its emerging importance as a focus of scholarly inquiry.

The book then presents theoretical, doctrinal, and comparative considerations of the foundations of trade secrecy, before moving on to study the impact of trade secrecy regimes on innovation and on other social values. Coverage includes topics such as sharing norms, expressive interests, culture, politics, competition, health, and the environment. This important Handbook offers the first modern exploration of trade secrecy law and will strongly appeal to intellectual property academics, and to students and lawyers practicing in the intellectual property area.

Professors in competition law, constitutional law, and environmental law will also find much to interest them in this book, as will innovation theorists. Read more Read less. No customer reviews. Share your thoughts with other customers.

6 points, SCA Band 3, 0.125 EFTSL

As new industries emerge and mature, nations must have the flexibility to modify their intellectual property rules to readjust the balance between public and private rights. In the course of that study, we examined approaches to TRIPs dispute resolution that could cabin the choices of legislation available to deal with emergent substantive problems, and which could distort the legal environment in which creative enterprises are conducted.

In this piece, we continue our consideration of the resilience of the Agreement and its commitment to neo-federalism. Here, however, we move from a focus on outcomes to the dynamics of the legislative process, examining the extent to which TRIPs dispute resolution adequately accommodates the operation of each member's political economy as it relates to intellectual property lawmaking. Frequently, as intellectual property lawmaking becomes fiercely contested, reforms can only occur when a balanced package of rules can be reached.

We ask whether such deals or perhaps which of such deals, depending upon the connection between the reforms should be taken into account by WTO panels. We argue that when legislation represents offsetting benefits and detriments, respect for domestic political dynamics requires panels to consider constituent pieces of such legislation in the context of the package in which they were enacted. In previous work, we questioned whether the jurisprudence that has developed with regard to the GATT's trade provisions should apply equally to intellectual property, noting that differences between trade and intellectual property policy mandated different approaches.

Here we reiterate that position, but make something of a converse argument as well: there are commonalities between the problems that nations experience in executing their trade commitments and their intellectual property commitments. Thus, it is significant that in its early years, the GATT incorporated strategies that created flexibility and permitted nations to deal autonomously with matters of domestic trade; we argue that similar mechanisms are required in TRIPs jurisprudence, especially in the Agreement's formative stage.

We also focus on the effect that TRIPs, as currently understood, has on domestic lawmaking.

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If WTO panel decisions intrude more into national law, might lawmakers begin to enact legislation in reliance on international invalidation of whole or parts of the enactment? Should formulation of domestic policy take this into account? Further, would the formalistic approach that has been taken to TRIPs jurisprudence benefit domestic lawmaking by reducing the effect of lobbying? Or would it simply induce more nuanced log-rolling, or the enactment of laws aimed at influencing intellectual property production but under a different legislative rubric such as food and drug regulation or consumer law?

Indeed, answers to these questions might affect not only lawmaking at the national level but, in turn, the form of WTO dispute settlement. We go so far as to suggest that there may be a role for the much-feared nonviolation complaints in navigating these complexities.

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It does little, however, to explicitly safeguard the interests of those who seek to use protected works. User interests are largely left to domestic practice through provisions like the famous "three-part" tests, which permit members to create limited derogations from protection, but only so long as they do not unreasonably conflict with normal exploitation of the protected work or unreasonably prejudice the right holder taking into account, in the case of patents, the interests of third parties.

It is rapidly becoming evident, however, that there are problems with a bifurcated system that, in effect, permits members to expand intellectual property rights, but which makes them subject to challenge before the WTO when they reduce any of the incidents of protection. Developing countries are the most obviously vulnerable. This essay is mainly designed to make a case for using the next round of GATT negotiations to add explicit user rights to the Agreement.

On the assumption, however, that the Hague goals are worthy of pursuit, the American Law Institute has initiated a project to set out Principles governing jurisdiction, choice of law, and enforcement of judgments for intellectual property. This Article describes the first draft of that instrument. It concludes with a practical example of how the Principles would apply to a hypothetical based on the KaZaA multinational peer-to-peer file sharing controversy.

This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments.

There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be exploited simultaneously in more than one territory. The ability to consolidate claims arising from these usages in one court, with the expectation that the judgment of that court will be recognized in all convention States, could reduce costs for all sides, conserve judicial resources on an international basis, and promote consistent outcomes.

Second, a convention drafted for intellectual property disputes can take account of issues uniquely raised by the intangibility of the rights in issue. For example, an intellectual property agreement can consider the ability of a potential defendant to gain litigation advantages through the choice of the location of the activities that give rise to infringement.

In certain situations, the propriety of expanding jurisdiction depends on the possibility of inconsistent outcomes; a convention tailored to intellectual property can specify what that term means in the context of public goods.

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An instrument for intellectual property litigation can also deal specifically with matters of unique concern to the creative community. The strong link between culture on the one hand, and intellectual production and utilization on the other, means that the territoriality of these rights is of crucial importance: individual nations must be able to retain some control over the local conditions under which these products are created, exploited, and accessed.

At the same time, an approach that creates new avenues for cross-cultural enrichment needs to be considered. For example, the circumstances where trans-border injunctions are permissible can be specified to include consideration of cultural, health, and safety issues. Other issues of prime interest to the information industries can also be considered: provisions on contract disputes can be tailored to deal with mass-market contracts, which are becoming prevalent in certain intellectual property transactions; provisions on infringement can be made sensitive to the interests of the "new media", such as Internet Service Providers.

Since these are countries that have agreed to enforce intellectual property law and are subject to dispute resolution proceedings if they fail to do so, these limitations would reduce concerns that forum shopping will undermine the delicate balance that each nation has struck between the rights of intellectual property users and owners. And although dispute resolution under the WTO cannot provide litigants with a substitute for a centralized and authoritative appellate body such as the US Supreme Court or the European Court of Justice , it can provide assurance of transparent and efficient judicial process, along with institutional mechanisms such as dispute resolution panels, the Dispute Settlement Board, and the Council for TRIPs for examining intellectual property law as it develops through consolidated adjudication of multinational disputes.

This paper takes a hard look at the relationship between international intellectual property litigation and the proposed Hague Convention on Jurisdiction and the Recognition of Foreign Judgments. The Convention is mainly aimed at creating a way for a civil judgment rendered in one member state to be assured enforcement in all other member states. Toward that end, it defines a series of agreed bases of personal jurisdiction; when a judgment is predicated on one of these bases, other member states are obliged to enforce it. The Convention also determines where particular claims can be litigated-certain claims are within the exclusive jurisdiction of particular states, others can be litigated where ever the Convention permits the assertion of adjudicatory authority over the defendant.

After briefly describing the terms of the Convention, its application to intellectual property is analyzed. One question is whether the territorial nature of intellectual property rights means that no nation should be permitted to adjudicate intellectual property claims arising under the laws of another jurisdiction. If some extraterritorial adjudication is permissible, the next question is, in what kind of cases.

The Convention distinguishes between registered rights cases, where issues of validity-and perhaps even infringement-can only be resolved at the place of registration, and all other intellectual property cases. This article takes the position that the line should be drawn between patent cases on the one hand and copyright and trademark cases on the other.

Patent cases require a level of technical expertise that is not as necessary for resolving copyright and trademark cases.

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Moreover, copyright and trademark cases often involve products that are digitally transmitted and thus can be infringed in many states simultaneously. Consolidated adjudication of such multinational copyright and trademark disputes can save judicial and litigant resources, avoid inconsistent outcomes, and provide fora for developing law for the new borderless market that the creative industries now encounter. The paper ends with a series of proposals to facilitate consolidation and adjudication of intellectual property disputes.

In that respect, it acts as background material for a draft judgments convention focusing exclusively on intellectual property litigation, which will be offered by the author and Professor Jane Ginsburg should the Hague efforts be frustrated or culminate in the exclusion of intellectual property from coverage.

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Adoption of international intellectual property standards; Protection of developing nations from the interpretation of nations' laws by foreign courts; Reallocation of rights in informational and cultural property. This article examines business method patenting.

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Signature Financial Group, Inc. First, I show why many invalid patents are likely to issue. Second, I review the rationales for intellectual property protection and demonstrate why none are relevant to business methods. Third, I argue that business model patenting can distort competition by insulating inefficient business operations. Because of network effects and lock in, these inefficiencies? The last part of the article suggests that patents should be permitted on the software that implements business methods, but not cover business models themselves.

Such an approach would better accord with core intellectual property doctrine, which permits protection for instantiations of principles expression in the case of copyright; applications in the case of patents , but not protection for the principles themselves. This approach would also withhold protection from business methods that do not require the special incentives of patent protection and it would focus both the PTO and the courts on the inventiveness of the software rather than the clever idea of transferring real-world business models such as the Dutch auction protected by the Priceline patent into cyberspace.

Most important, if patent protection were to run only to software and not to the model the software implements, then others would be able to utilize the model with different software or without software. Thus, distortive impacts on the competitive marketplace would largely be eliminated. This Article explores the field of collaborative research in the realm of intellectual property law.

Traditionally, scientist, artists, and professors developed ideas alone, utilizing only their own knowledge and research to complete their works. Recently, however, due in part to an increasing need for specialization, the globalization of the marketplace, the rapid growth of the Internet, and an expansion in intellectual property law, collaborative production is replacing individual efforts. Collaborative efforts have posed an array of new and challenging legal problems.

This Article proposes a series of legal rules that utilize both intellectual property law's concepts of authorship and inventorship and Coasian ideas of transactional freedom. These rules provide a benchmark for collaborative parties, thereby assisting them in identifying issues and structuring workable arrangements. In contrast to Americans, there is a paucity of interest in economic theory among continental scholars. One view is that the explanation lies in another aspect of the civil versus common law distinction - a difference in the mode of reasoning which makes the formalism of certain kinds of economic theory more congenial to common law lawyers than to their civil counterparts.

If this is true - if economic analysis appeals to American lawyers partly because of its kinship to common law methodology - then there are several implications for law and economics. One is that the subjects of modeling need to be chosen carefully: if models have special salience for legal thinkers, then it is important to be offering models that are geared to the issues lawyers are thinking about. A second implication of seeing common law jurisprudence as particularly susceptible to economic analysis lies in making sure that the common features of the formalism in common law and in economics do not obscure a crucial distinction between the two.

Common law's analogic reasoning looks at how particular rules play on specified facts; it is not terribly relevant whether the facts leading up to the rule matched the historical truth about the case where the rule was articulated. This is not so when law is derived from models-there, underlying facts matter. After reviewing the advantages of facilitating information exchange with uniform licensing law, the article looks at the cost to public access interests and to the goal of promoting innovation.

In contrast to protection based on copyright, patent, and trade secrecy laws, contractually-imposed obligations are less likely to release information into the public domain and are more likely to bind remote users and to require licensees to forgo particular usages. These obligations can also be made to endure forever, which is not possible in regimes constrained by the "limited times" provision of the Constitution.

Although UCITA is made subject to constitutional preemption analysis and obligations can also be suspended if clearly contrary to public policy, it lacks any guidance to help courts? The article goes on to argue that in the international context, these problems are exacerbated. Because UCITA envisions a variety of extraterritorial applications, it may be enforced in the courts of nations that lack firm public policies favoring public access to information, and in courts that do not understand that constitutional preemption analysis as UCITA's primary safeguard for the public domain.

The article concludes that UCITA could be substantially improved by adopting its own information policy as an organic part of the document, embedded systematically into its provisions.