Treating trade secrets as property: A jurisprudential inquiry in search of coherency

The property can be denied, but the confidence cannot be!1

Traditionally, the concept of trade secrets has been seen as arising out of a contractual obligation. In this sense, what required protection was the relation rather than the information.2 However, in the mid- and late 19th century, this understanding underwent a shift and the courts were tasked with the position to take. Plaintiffs sought remedies under the breach of trust law, breach of contract and property law. Granting trade secrets protection under property law seemed feasible without any hindrances. Indeed, over time courts have relied on property law to provide plaintiffs with remedies.3 However, a deeper analysis and comparison of trade secrets law and property law shows that they are not really compatible. The main problem is twofold: first, the intangible nature of trade secrets;..Read More