Law.com Subscribers SAVE 30%
Call 855-808-4530 or email GroupSales@alm.com to receive your discount on a new subscription.
Like Mushrooms After A Rainstorm: Trade Secret Cases, and Lawyers, Are Growing Exponentially
When I started practicing law over 30 years ago — as hard as it is for many people to believe now — patent litigation was not "the thing" it is today. The U.S. Court of Appeals for the Federal Circuit, which is the court that hears all appeals in patent cases, was then only four years old. Patent "trolls," as such, did not yet exist, although "submarine" patents did (Lemelson's being the most well known). Some of the most famous patent owner friendly courts (e.g., the U.S. District Court for the Eastern District of Texas) had yet to emerge, and there were virtually no local patent rules. On the business side of the law, most firms in "Big Law" did not have a single patent attorney in the firm (and if they did, they had just one or two), and even those that did often did not handle patent cases. Thirty years later, this seems unthinkable.
There were also numerous unanswered legal questions, such as whether claim construction was a fact or legal question, which was not settled until the U.S. Supreme Court's ruling in Markman v. Westview Instruments, 517 U.S. 370 (1996). Methods for calculating damages in patent cases were uncertain — today, all patent litigators are familiar with concepts such as "apportionment" and the "entire market value" rule. In many cases, it is inappropriate to apply a royalty on the entire value of an item being sold. Instead, the royalty base should be limited to the portion of the value derived from the use of the patent invention. And of course there is the whole evolution of what inventions are considered "patent eligible" under Section 101 of the Patent Act — a standard which has been (and to some degree remains) a moving target over the last 30 years.
Why do I tell this story? Because what happened in patent law 30 years ago is now happening in trade secrets law. Although patents had been around for hundreds of years and even though there were some memorable patent fights before the 1990s, such as that between Edison and Westinghouse (dramatically portrayed in on one of my favorite books of all time, "Last Days of Night" by Graham Moore), patent litigation did not quite hit its prime until around 2000. So too with trade secrets, which dates back to at least the Romans and the Guilds in the Middle Ages (depending on whom you ask). In modern times, trade secrets have long been considered mainly the province of employment lawyers dealing with more mundane issues such as customer relationships. To many, even those in the IP bar, trade secrets were certainly not a type of IP (or even properly considered property). Today, it seems trade secrets lawyers are multiplying like mushrooms after a rainstorm — coming not only from the employment bar, but also from IP, particularly the patent bar.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at customercare@alm.com or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
The Benefits of Blockchain for e-Discovery and Data Preservation
As businesses across various industries increasingly adopt blockchain, it will become a critical source of discoverable electronically stored information. The potential benefits of blockchain for e-discovery and data preservation are substantial, making it an area of growing interest and importance.