A trade secret is the oldest form of intellectual property, and trade secrets have been granted protection since before modern civilized society. According to University of New Hampshire School of Law professor John Cavicchi, “Trade secret law is the oldest form of IP protection, and already in Roman times the law afforded relief against a person who induced another’s employee (slave) to divulge secrets relating to the master’s commercial affairs.” In other words, even in ancient Rome, the government frowned upon using unethical methods to determine someone’s professional trade secrets.
Protection of trade secrets continued through the European guilds of the middle ages and became cemented into law for the first time in 1817 in the case of Newberry v. James. This is the first recorded case dealing with trade secret infringement.
American trade secret protection stems from common law cases and dates back to the 1800's. However, American trade secret law was defined solely by individual states and no two states held the same standard. In 1939, the Restatement of Torts sought to give guidance to the states on how trade secret law should be determined. With the invention of the six-factored approach to determining trade secrets, businesses finally had a source of reference for properly protecting their trade secret by relying on the law to back their attempts.
Today, every state recognizes some form of trade secret protection. Most states have legislation that specifically recognizes trade secrets, though some still rely solely on common law principles.
Most of the states that have trade secret laws use the Uniform Trade Secrets Act of 1985, which has helped create a more uniform body of law from state to state. This law was given more authority through the Economic Espionage Act of 1996, which finally made the theft or misappropriation of trade secrets a federal crime.
In sharp contrast to patent, copyright, and trademark protections, which are all federal forms of intellectual property law, trade secret protection is primarily maintained through state law. For more information on current trade secret law and to learn how to protect your trade secret, consult with an intellectual property attorney in your state.