Let's assume the following:
- A California entity (person or company, hereafter "defendant")
has profited financially from the use of a certain product/method/etc.
(hereafter "Information Used").
- Defendant is being sued for the misappropriation of a trade
secret (hereafter "information given").
- Both the CA owner (corp.) of the trade secret and the government
(hereafter "plaintiffs") are suing, using all available laws,
including but not limited to the following:
a. CA CIVIL CODE SECTION 3426-3426.11
(http://caselaw.lp.findlaw.com/cacodes/civ/3426-3426.11.html)
b. The Economic Espionage Act of 1996
c. trade secret theft under USC 18 §1832
(http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001832----000-.html)
d. trademark infringement under 15 U.S.C. §§ 1051 et seq.
e. federal unfair competition under 15 U.S.C. §§ 1125(a)
f. California common law unfair competition under former Cal.Civ. Code § 3369
g. "Restatement (First) of Torts, § 757"
- All bullets at the following web page are met
(http://www.thetso.com/Info/fail.html), i.e. defendant would lose the
suits if "Information Used" were *identical* to "Information Given".
- "Information Used" may resemble but is NOT identical to "Information Given".
What is the test judges use to determine the legal similarity of
"Information used" and "Information given"? I know the similarity
tests for patents, trademarks, and copyrighted works, but not for
trade secrets.
A full answer will include:
50%: The details of the "official" test for similarity between
trade secrets, including links to full text of judgement findings of
lawsuit(s) in which this test or tests was/were applied explicitly to
one or more lawsuits from of law a. (CA CIVIL CODE SECTION
3426-3426.11) above.
10% each: As above, but this time for lawsuits alleging
infringement of each of the remaining laws b. through f. above.
5%: URL to full text of "Restatement (First) of Torts, § 757"
5%: Today's CA code that is equivalent to Cal.Civ. Code § 3369 from
1978-ish including link to full text of today's equivalent. |
Clarification of Question by
match1-ga
on
10 Jan 2006 23:13 PST
They're more a guideline so you know what's most interesting to me.
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Request for Question Clarification by
hagan-ga
on
18 Jan 2006 13:21 PST
Hello, Match1. I think I understand the general thrust of your
question, but before I answer, I want to clear up one issue.
There is no "similarity" test in California for trade secret
protection, as there is in patent and trademark law. This is because
patent/trademark law and "trade secret" law are slightly different.
Patent/trademark protection seeks to protect a particular THING from
being duplicated by unauthorized people. The THING is not to be
duplicated, even though it's publicly known. So the focus in
patent/trademark cases is on the THING itself, and whether or not the
competitor's product is similar to the THING.
Trade secret law, on the other hand, is not intended to protect THINGS
that are in the public domain. Instead, the only focus is to protect
secrets. So the relevant inquiry isn't "Is this THING too similar to
this other THING," but rather "Did the defendant steal a secret?"
Even if the two THINGS are similar, if there wasn't a secret involved,
there's no claim. So trade secret law does not have a "similarity"
test, but rather a "Was it a trade secret?" test.
I can provide the cases and analysis that discuss the "Was it a
secret?" test. I can also provide cases that discuss the other
factors (b) through (g) in your question. I may or may not be able to
provide a direct link to the Restatement, and to the new Civil Code
Section -- I haven't completed my research into that issue.
So. Would all of that suffice as an answer to your question?
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Clarification of Question by
match1-ga
on
18 Jan 2006 23:34 PST
Hi hagan-ga,
Thank you for your reply. The short form is, no that would not suffice
for my particular needs. However, I think there are a few things worth
noting here:
- You are correct in that, in addition to the questions in the link I
provided (http://www.thetso.com/Info/fail.html), the issue of whether
or not a method is a trade secret is also important. Did the plaintiff
protect the secrecy of the method as much as its' economic value
warrants? Was it widely known in the industry? How much work did it
take to create it, etc.
However I am posing the question that we must assume the worst: It is
a trade secret, the defendant failed the tests at the link above, etc.
So rather than focus on "if there wasn't a secret involved, then
there's no claim, even if they are similar", I'd like to know "if
there is a trade secret involved, how dissimilar do they have to be
for it to not matter?"
At the same time you were posting your update I was being given
additional info that alters the parameters of my question beyond that.
For that reason I am, at least temporarily, going to hibernate this
question until I can clarify the issues that are still open for me.
Thank you again for your post and effort.
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