Toxins R Us

Toxins-R-US

Toxins-R-US (TRU) is constructing a new plant, to manufacture a highly secret unpatented process for producing “Soiled Green”. The roof has been left off the building so that large pieces of machinery can be crane inserted into the building. The type, size and arrangement of this machinery will disclose quite a bit about the process of producing “Soiled Green”.

During the construction, TRU’s processes were exposed to view from the air, and two photographers photographed the facility. These photographers did not know whom they were working for, or why this site was chosen to be photographed. Nemo Corporation, TRU’s arch nemesis, hired these photographers.

Does the photographer’s act of taking pictures of this facility constitute Misappropriation of TRU’s trade secrets?

Does the act by Nemo corporation of hiring these photographers constitute Misappropriation of TRU’s trade secrets?

Since TRU has not yet filed for a patent of this production process of “Soiled Green”, Patent infringement laws do not apply.

A trade secret, as defined by the Fifth Circuit Court of Appeals, is “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it” (Corley, Reed, Shedd & Morehead, 2002, p. 202). Information that is of general knowledge cannot be a trade secret. For a trade secret to remain a trade secret, a business must take active steps to keep information confidential. Theft of a trade secret is a violation common law, some state statues and considered a federal crime.

Rules related to Misappropriation according to the Uniform Trade Secrets Act:

(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(ii) disclosure or use of a trade secret of another without express or implied consent by a person who

(A) used improper means to acquire knowledge of the trade secret; or

(B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was

(I) derived from or through a person who has utilized improper means to acquire it;

(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake (Green, 2004, p. 13).

In analysis, for TRU’s process to remain a trade secret, they must take active steps to keep information confidential. TRU has not instituted any measures to keep people from viewing from the sky the site or type, size or arrangement of their installed equipment.