Abstract

     There is a growing debate between the proponents of the public domain and supporters of private ownership of information. The contentious discussion on these issues has not yet focused on trade secret law, but it is time to subject trade secret law to the same questions of public policy now asked of copyright, patent, and trademark law. One theory of trade secret law that poses a direct threat to the public domain is the so-called combination trade secret, a concept that permits some combinations of publicly available information to be treated as intellectual property. Despite more than a century of case law on this theory, courts and commentators have never developed a set of tests to properly analyze whether an asserted combination trade secret should be recognized as such. We propose that such combination secrets must satisfy standards no less stringent than those applied for individual trade secrets in order to qualify for intellectual property protection. Specifically, combination trade secrets must not be obvious and must have functionally interrelated elements that provide economic value over combinations with publicly known alternatives. Furthermore, in order to have misappropriated a combination trade secret, a defendant must know about and intend to misappropriate the entire combination, and not have independently derived it. If applied, these tests would protect information in the public domain from overbroad or exaggerated combination claims, while ensuring that truly unique combinations receive intellectual property protection.