Editing Trade secret (section)

== History ==

=== Early origins ===
Commentators like [[A. Arthur Schiller]] have argued that trade secrets were protected under [[Roman law]] by a claim known as {{lang|la|actio servi corrupti}}, meaning an "action for making a slave worse" or "an action for corrupting a servant." The Roman law is described as follows:

<blockquote>[T]he Roman owner of a mark or firm name was legally protected against unfair usage by a competitor through the ''actio servi corrupti'' ... which the Roman jurists used to grant commercial relief under the guise of private law actions. "If, as the writer believes [writes Schiller], various private cases of action were available in satisfying commercial needs, the state was acting in exactly the same fashion as it does at the present day."<ref name="watson">{{cite journal |last=Watson |first=Alan |date=1996 |title=Trade Secrets and Roman Law: The Myth Exploded |url=https://journals.tulane.edu/teclf/article/view/1488 |journal=Tulane European and Civil Law Forum |volume=11 |pages=19 |access-date=11 November 2024}}</ref></blockquote>

The suggestion that trade secret law has its roots in Roman law was introduced in 1929 in a ''[[Columbia Law Review]]'' article called "Trade Secrets and the Roman Law: The ''Actio Servi Corrupti''", which has been reproduced in Schiller's, ''An American Experience in Roman Law'' 1 (1971).

However, the [[University of Georgia Law School]] professor [[Alan Watson (legal scholar)|Alan Watson]] argued in ''Trade Secrets and Roman Law: The Myth Exploded ''that the ''actio servi corrupti'' was not used to protect trade secrets. Rather, he explained:

<blockquote>Schiller is sadly mistaken as to what was going on. ... The ''actio servi corrupti'' presumably or possibly could be used to protect trade secrets and other similar commercial interests. That was not its purpose and was, at most, an incidental spin-off. But there is not the slightest evidence that the action was ever so used. In this regard the ''actio servi corrupti'' is not unique. Exactly the same can be said of many private law actions including those for theft, damage to property, deposit, and production of property. All of these could, I suppose, be used to protect trade secrets, etc., but there is no evidence they were. It is bizarre to see any degree the Roman ''actio servi corrupti'' as the counterpart of modern law for the protection of trade secrets and other such commercial interests.<ref name="watson" /></blockquote>

=== Early case law ===
Modern trade secret law is primarily rooted in Anglo-American [[common law]].<ref name=":2" />{{rp|pages=|style=AMA|page=6}} The earliest recorded court case was the 1817 English case ''Newbery v. James,'' which involved a secret formula for gout treatment.<ref name=":3">{{cite book |last1=Jager |first1=Melvin F. |title=Trade Secrets Law |last2=Lane |first2=Brad |publisher=Thomson Reuters |year= |isbn= |edition=August 2024 Update |volume=1 |chapter=§ 2:2. The early English common law |quote="The early English cases paint a warped picture of nineteenth-century England. The pressing issue of the day in Britain, at least according to the early trade secret decisions, was the misappropriation of the secret recipes for 'patent' medicines. A secret formula for treating gout was the subject of a legal battle which resulted in what appears to be the first reported trade secret case in England: Newbery v. James." |chapter-url=}}</ref><ref name=":2">{{cite book |last=Lemley |first=Mark A. |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155167 |title=The Law and Theory of Trade Secrecy |publisher=Edward Elgar Publishing |year=2011 |editor= |chapter=The Surprising Virtues of Treating Trade Secrets as IP Rights |ssrn=1155167 |access-date=11 November 2024}}</ref>{{rp|pages=|style=AMA|page=5}}<ref>{{Cite web |title=Newbery v James and Others |url=https://vlex.co.uk/vid/newbery-v-james-and-802700137 |access-date=2024-11-11 |website=vLex |language=en}}</ref> In the United States, this concept was first recognized in the 1837 case ''Vickery v. Welch'', involving the sale of a chocolate factory and the seller’s agreement to keep the secret recipe confidential.<ref>{{Cite web |date=2022-07-28 |title=The Artificial Distinction Between Trade Secrets and 'Confidential Information' |url=https://ipwatchdog.com/2022/07/28/artificial-distinction-trade-secrets-confidential-information/id=150443/ |access-date=2024-11-11 |website=IPWatchdog.com {{!}} Patents & Intellectual Property Law |language=en}}</ref><ref>{{cite court|litigants=Vickery v. Welch|vol=19|reporter=Pick.|opinion=523|pinpoint=523|court=Mass.|date=1837|quote=|url=https://case.law/caselaw/?reporter=mass&volume=36&case=0523-01}}</ref>

''Newbery'' and ''Vickery'' only awarded compensation for losses ([[damages]]) and did not issue orders to prevent the misuse of secrets ([[Injunction|injunctive relief]]).<ref name=":2" />{{rp|pages=|style=AMA|page=5}} The first English case involving injunctive relief was ''Yovatt v. Winyard'' in 1820, where the court issued an injunction to prevent a former employee from using or disclosing recipes he had secretly copied from his employer's veterinary medicine practice.<ref>{{cite book |last1=Jager |first1=Melvin F. |title=Trade Secrets Law |last2=Lane |first2=Brad |publisher=Thomson Reuters |year= |edition=August 2024 Update |volume=1 |chapter=§ 2:2. The early English common law |quote="The next English trade secret owner to litigate his claim was more successful. A now-typical employer/employee problem was presented for solution to the early English Chancellor in Yovatt v. Winyard. The defendant there had been a journeyman in plaintiff's office of veterinary medicine, and surreptitiously copied recipes and instructions for plaintiff's medicines. The court issued an injunction against the defendant's use or disclosure of the recipes because of his 'breach of trust and confidence.'"}}</ref><ref>''Yovatt v. Winyard'', (1820) 37 Eng. Rep. 425, 426 (Ch.)</ref> 

In the United States, the 1868 Massachusetts Supreme Court decision in ''Peabody v. Norfolk'' is one of the most well-known and well-reasoned early trade secret case, establishing foundational legal principles that continue to be central to common law.<ref name=":4">{{cite book |last1=Jager |first1=Melvin F. |title=Trade Secrets Law |last2=Lane |first2=Brad |publisher=Thomson Reuters |year= |edition=August 2024 Update |volume=1 |chapter=§ 2:3. The early U.S. common law |quote=}}</ref><ref>{{Cite web |title=PEABODY vs. NORFOLK, 98 Mass. 452 |url=http://masscases.com/cases/sjc/98/98mass452.html |access-date=2024-11-11 |website=masscases.com}}</ref> In this case, the court ruled that Peabody’s confidential manufacturing process was a protectable trade secret and issued an injunction preventing former employees from using or disclosing it after they shared it with a competitor.<ref name=":4" />

=== Uniform lawmaking and legislation ===
In 1939, the ''Restatement of Torts,'' published by the [[American Law Institute]], offered, among other things, one of the earliest formal definitions of a trade secret. According to Section 757, Comment b, a trade secret may consist of "any formula, pattern, device, or compilation of information which is used in one's business, and which gives the business an opportunity to obtain an advantage over competitors who do not know or use it."<ref name=":5">{{cite journal |last=Klitzke |first=Ramon A. |year=1980 |title=The Uniform Trade Secrets Act |url=https://scholarship.law.marquette.edu/facpub/39/ |journal=Marquette Law Review |volume=64 |issue=2 |pages=277–307}}</ref>{{rp|pages=|style=AMA|page=278}} This definition became widely used by courts across the United States.<ref name=":5" />{{rp|pages=|style=AMA|page=278}} As the first attempt to outline the accepted principles of trade secret law, the ''Restatement'' served as the primary authority adopted in virtually every reported case.<ref name=":5" />{{rp|pages=|style=AMA|page=282}} 

Trade secret law saw further development in 1979 when the [[Uniform Law Commission]] (ULC) introduced a model law known as the [[Uniform Trade Secrets Act]] (UTSA), which was later amended in 1985. The UTSA defines the types of information eligible for trade secret protection, establishes a private cause of action for misappropriation, and outlines remedies such as injunctions, damages, and, in certain cases, attorneys' fees.<ref>{{Cite web |title=Uniform Trade Secrets Act (UTSA) {{!}} Practical Law |url=https://content.next.westlaw.com/practical-law/document/I2104de7aef0811e28578f7ccc38dcbee/Uniform-Trade-Secrets-Act-UTSA |access-date=2024-11-11 |website=content.next.westlaw.com |language=en-US}}</ref> It has since been adopted by 48 states, along with the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, with New York and North Carolina as the exceptions.<ref>{{Cite web |title=trade secret |url=https://www.law.cornell.edu/wex/trade_secret |access-date=2024-11-12 |website=LII / Legal Information Institute |language=en}}</ref><ref name=":6">{{cite report |url=https://sgp.fas.org/crs/secrecy/IF12315.pdf |title=An Introduction to Trade Secrets Law in the United States |author=Congressional Research Service |date=January 27, 2023 |publisher=Congressional Research Service |access-date=November 12, 2024 |accessdate=}}</ref> 

The UTSA influenced the [[Defend Trade Secrets Act]] (DTSA) of 2016, which created a federal civil [[cause of action]] for trade secret misappropriation, allowing plaintiffs to file cases directly in federal courts if "the trade secret is related to a product or service used in ... interstate or foreign commerce."<ref name=":6" />

=== International standards ===
Trade secret law is governed by national legal systems.<ref name=":7">{{Cite web |title=Trade Secrets: the other IP right |url=https://www.wipo.int/wipo_magazine/en/2013/03/article_0001.html |url-status=live |archive-url=https://web.archive.org/web/20240614034612/https://www.wipo.int/wipo_magazine/en/2013/03/article_0001.html |archive-date=2024-06-14 |access-date=2024-11-12 |website=www.wipo.int |language=en |quote="Trade secret law, like other forms of IP, is governed by national legal systems. However, international standards for protecting secrets (called “undisclosed information”) were established as part of the TRIPS Agreement in 1995. Article 39 of the agreement provides that member states shall protect “undisclosed information” against unauthorized use “in a manner contrary to honest commercial practices” (this includes breach of contract, breach of confidence and unfair competition). The information must not be generally known or readily accessible, must have value because it is secret, and must be the subject of “reasonable steps” to keep it secret."}}</ref> However, international standards for protecting secrets (called “undisclosed information”) were established as part of the [[TRIPS Agreement]] in 1995.<ref name=":7" /> Article 39 of TRIPS obligates member countries to protect “undisclosed information” from unauthorized use conducted “in a manner contrary to honest commercial practices,” including actions such as breach of contract, breach of confidence, and unfair competition. For the information to qualify, it must not be generally known or easily accessible, must hold value due to its secrecy, and must be safeguarded through “reasonable steps” to keep it secret.<ref name=":7" /><ref>{{Cite web |title=WTO {{!}} intellectual property (TRIPS) - agreement text - standards |url=https://www.wto.org/english/docs_e/legal_e/27-trips_04d_e.htm |access-date=2024-11-12 |website=www.wto.org}}</ref>