Decision Shows What Can Go Wrong in Trying to Protect a Trade Secret

Trade secrets are a fickle form of intellectual property.  They can be invaluable in protecting a company’s assets, and potentially can last forever.  Coca-Cola famously has maintained its formula as a trade secret for well over a century.  On the other hand, trade secret rights can be easily lost.  Unlike a patent or copyright, there is no general right to exclude third parties from using the trade secret. 

Instead, trade secret law focuses on the means of obtaining access to the protected information.  To illustrate, a competitor who buys the trade secret owner’s product off the shelf and reverse engineers it can use whatever it learns in its business, even in competing with the trade secret owner.

On March 3rd the Southern District of New York granted summary judgment in favor of the defendant in a trade secret case, Big Vision Pvt. Ltd. v. E.I. du Pont de Nemours & Co., 1 F.Supp.3d 224 (2014).  The decision highlights the difficulty of maintaining and enforcing trade secrets.  District judge Katherine Polk Failla’s 94-page opinion is a primer for counsel seeking to advise trade secret holders.