The Questionable Case for Federalizing Trade Secrecy

Trade secrecy is unique among the major forms of intellectual property as not being primarily governed by a federal statute. Unlike patents and copyrights, trade secrecy is a creation of state law, arising in the nineteenth century out of a variety of common law to become a separate source of protection against the improper acquisition, disclosure, and use of commercially-valuable information that has been maintained in confidence. And unlike trademarks, which also arose under state law but now are predominantly protected under the Lanham Act, trade secrecy has maintained its state law status throughout the twentieth century.