question.jpgIn Trade Secrets

What are improper means for learning of a trade secret?

The most obvious example of an improper means of learning of a trade secret is an outright illegal action, such as stealing protected documents or obtaining protected information fraudulently or through illegal surveillance (such as bugging a manufacturing plant). However, the means used to acquire or learn of a trade secret do not necessarily have to be illegal to be found improper. If someone takes active steps in an attempt to overcome the trade secret owner’s steps to maintain secrecy, that may be enough to constitute improper means.

One of the most well-known examples of such legal-but-improper means involved a company which was building a new manufacturing plant. While the plant was still under construction, a rival company flew a plane over the construction site and took photographs of how the plant was being put together. In doing so, the rival did not break any laws. However, the original company’s manufacturing process was a trade secret and the court found that the rival improperly attempted to learn that secret by flying over the plant. The rival was therefore liable for trade secret misappropriation. The reason the court came to this conclusion was that it would be unreasonable for the original company to have been forced to cover its whole construction site while the plant was being build.

While attempts such as the above-discussed flyover can be found improper, it is important to understand that there are means of learning a trade secret which are proper. The most obvious example is reverse engineering.