What Copyright Might Teach Trade Secrecy

Joseph P. Fishman & Deepa Varadarajan, Similar Secrets, 167 U Penn. L. Rev. __ (forthcoming 2019), available at SSRN. Pamela Samuelson When an employee has had lawful access to her firm’s trade secrets and later uses them when working for a new employer or when starting her own firm, the former employer may well sue her for trade secret misappropriation. Disputes in such cases routinely focus on identifying the secrets at issue, examining the process by which the alleged misappropriation occurred, and assessing what advantages the employee may have gotten from use of those secrets. Should courts also consider how much similarity exists between the plaintiff’s and the defendant’s products, processes, or services? And should courts also consider whether the defendant’s new firm and the old firm directly compete or operate in different and arguably unforeseen markets? Similar Secrets says the answer to both questions should be yes. Its…

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