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Why Legal Experts Are Up In Arms Over a Trade-Secrets Bill Microsoft Loves (cio.com)
itwbennett writes: At a Senate Judiciary Committee hearing on Wednesday, lawmakers heard arguments over the Defend Trade Secrets Act of 2015. The proposed legislation would allow companies to pursue trade-secrets cases in federal court much as they can copyright or patent cases, thereby freeing them from the state-level constraints of today's laws. It also allows for so-called ex parte seizure, enabling a company that thinks a secret has been stolen to ask the government to seize a suspected thief's property without notice, to prevent misuse of that secret. It's the ex parte seizure provision, as well as the bill's potential to increase the duration and cost of trade-secrets litigation, that prompted more than 40 law professors to write a joint letter expressing their concern. Companies have long protected algorithms such as consumer credit-scoring mechanisms under trade-secret law, intellectual property expert and Hamline University professor Sharon Sandeen said in an interview after the hearing. If passed, the new bill could give them new powers to conceal those algorithms, she said. Voicing the opposing view, lawyers from Corning and DuPont cited the increasingly digital and global nature of trade-secrets theft, a sentiment that was echoed in a blog post by Jule Sigall, Microsoft's assistant general counsel of IP policy and strategy.
Exactly. We made a decision early on that keeping secrets was bad for broad innovation, so we came up with patents. You get protection, but no more secret. If you want to keep your secret, you give up on extra protection. So a leaked secret shouldn't have extra protection.
As much as the patent system sucks, it still gets a public record of inventions that we might not otherwise be able to recreate.
He effected a bored affect.
Trade secrets are a little different than patents or copyrights. A trade secret is something like the full list of KFC's original 11 herbs and spices, or the formula for transparent aluminum. To give an example of the difference between patents, copyright, and trade secrets, etc, let's consider Coca-cola:
The Coca-cola name and logo are trademarks.
If Coca-cola were to come up with a new method of putting carbonation in soft drinks, they might file a patent for that process.
If Coca-cola came up with song as an advertising jingle, they would own the copyright to that song.
And the (secret) formula for Coca-cola is a trade secret.
If this was all that was - it's not.
Ex parte seizure is really problematic, for reasons outlined in the responses in the original article.
In short.
Microsoft says, without complete proof that an ex employee took sourcecode to your company, and now on the word of microsoft alone, without any rights to debate this - all they have to do is to convince a non-technical judge - they can basically shut down your entire company for a period.
There is - in principle - a defence if they do this maliciously, but that's going to be _extraordinarily_ hard to prove absent someone actually committing to paper 'let's fake a complaint and screw this guy'.
The process takes around a week.
In any realistic scenario, this 'express' process is uselessly faster than a month one for other legal action, simply as by that time the code has already been moved.
Well, that...but it is also a nice tidy way to effectively patent the unpatentable. This is an end run around the notion that mathematics is not patentable. Nope, now it's a "trade secret"...cue the angelic choir of thousands of lawyers giving thanks.
Patents are so inconvenient: limited lifetime, you have to publish how you're doing what you're doing. Much easier to just turn trade secrets into secret, infinite-life patents, now with government protection and a nice threat for any small companies that dare to try to compete with you.
Nostalgia's not what it used to be.