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Trade Secrets by Timothy McCan: Home


Trade Secrets, as the name suggests, are kept hidden from the world in order to provide an exclusive benefit to their owner [Restatement 3d of Unfair Competition §42 comment f (1995)]. Trade Secret Law has largely been defined by state statutes and common law and is distinguishable, but not immiscible, from patent law and other forms of Intellectual Property protection. The key difference between a trade secret and a patent is the length of protection. For example, patents are typically only protected for about twenty years, and are also published so others are able to use and benefit from the innovation. Trade secrets remain protected under state and federal law as long as their possessor meets certain guidelines. This research guide has been assembled with a focus on Florida Trade Secret Law, however I have provided access to resources that will assist in other states as well. 

Examples of Trade Secrets

The Coca-Cola Formula

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How The New York Times Determines it Best Sellers List

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The Recipe for Mrs. Fields Cookies

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Patent or Trade Secret?

Barbara Luther of the Luther Law Firm, PLC gives a quick and easy explanation on what types of information should be patented and situations where you can use both patents and trade secrets to protect your information.(Source: Youtube)


No Legal Advice Provided

The material on our research guide’s website is intended to provide only general information and comment to our clients and the public. This research guide is created for educational purposes only. Although we make our best efforts to ensure that the information found on our website is accurate and timely, we cannot, and do not, guarantee that the information is either. Nor do we guarantee the accuracy of any information contained on websites to which our website provides links.

Do not, under any circumstances, rely on information found on our website as legal advice. Legal matters are often complicated. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. For assistance with your specific legal problem or inquiry please contact a knowledgeable lawyer, who practices in your area of need and would be pleased to determine whether she or he can assist you. The State Bar Association is ordinarily a good source for referrals for competent attorneys.

Trade Secret


What is a Trade Secret?

Benjamin I. Fink of Berman, Fink, Van Horn P.C. gives a brief explanation of what a trade secret can be: (Source: YouTube)

Federal Law vs. State Law


In the United States, trade secrets are governed primarily by state law. This is in contrast to patents and trademarks which are exclusively governed by federal statutes and the USPTO. It is important to keep this distinction in mind as you continue to research the topic of trade secrets. 

Trade Secrets vs. Patents

   The Restatement (Third) of Unfair Competition §39( 1995), comment c discusses the relationship between patent and copyright law to trade secret law. Federal patent law protects inventions that are (1) novel and (2) kept secret prior to seeking patent protection. Patent holders also enjoy the ability "to exclude others from making, using, or selling the patented invention, 35 U.S.C.A. § 271, enforceable even against persons relying on independent discovery or reverse engineering."

   This diagram helps to demonstrate the cross section of Intellectual Property that can be patented versus that which can be protected as a trade secret. Trade secret protection can apply to a much broader range of innovations, where patents have a strict set of guidelines and must go through an in depth and expensive examination by the United States Patent and Trademark Office (USPTO).



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