11,257 research outputs found

    Intellectual property business protection during a company survival stage : an inside-out approach

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    Lawyers and businessmen work closely together every day. Despite the increasing value of patents and trademarks for companies, it is important to keep in mind that Intellectual Property law and contractual law provide for much more types of protection than statutory rights (patents, trademarks, copyright). Business and company developments are no longer linear. Flexibility plays a key role in the journey a company has to travel to reach success, especially in the case of entrepreneurs and sole proprietorship companies. New businesses going through the "death valley"1 will need to be as flexible as possible to succeed. It is only fair for their attorneys to meet such flexibility standard. For these purposes, understanding different industries, stages of business developments, and Intellectual Property contractual and statutory rights becomes an essential matter to properly asses which kind of protection should and can be used for a particular scenario, on a specific time and on a limited budget. In general terms, Intellectual Property literature presents different types of Intellectual Property management schemes making use of patents, trademarks, design models, copyright, etc. individually considered and mainly referring to statutory or agency granted rights. These mainly and usually refer to case law and /or jurisprudence (as applicable) and international conventions. However, despite the ever increasing number of articles addressing each of these rights, little reference is made to their strategic use within the context of a specific company's business development stage or business needs they are aiming to protect. When reflecting on success cases, not many details are published regarding the "partnership agreements", "employment contracts", "services agreement" entered into by a company, or the Intellectual Property policies implemented by it while developing its business. On the other hand, when addressing the Intellectual Property portfolio, authors seem to refer to patents, trademarks and copyright as the big (or even core) concerns. Consequently, what matters should an entrepreneur identify and address from an Intellectual Property standpoint when starting a business? The most common answer has been: I am just starting and not anywhere near to a patent, so that is not for me. Each Intellectual Property statutory right functions independently, notwithstanding the possibility of using a combination of them. However, these rights can be used for more than one purpose. This dissertation describes the legally granted privileges (focused on patents, trademarks, copyright) and the role these play, just as one of the tools entrepreneurs have to protect their Intellectual Property business. It describes and explains other available contracting tools as part of a comprehensive Intellectual Property protection and business development strategy

    “It’s Just Not Right”: The Ethics of Insider Trading

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    The Supreme Court doctrine defining insider trading and a competing theory called the misappropriation theory are criticized, focusing on the case of United States vs Chestman. A counter-argument is presented

    The Trans-Pacific Partnership Agreement and the protection of commercial confidential information and trade secrets in New Zealand law

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    After many years in which trade secrets law received relatively little attention internationally, we are now seeing a flurry of activity aimed at harmonising trade secret protection, combined with efforts to increase the level of protection provided by law. Internationally, there have been a number of initiatives to increase trade secret protection, driven by concerns about economic espionage, especially foreign economic espionage. ÂčThis article is about one such initiative, the trade secret provisions in the recently concluded Trans-Pacific Partnership Agreement (TPPA) to which New Zealand is a party, and the impact these provisions will have on New Zealand law

    Doing Business in Mexico

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    [Excerpt] This memorandum provides a general summary of certain aspects of Mexican law, which may be of interest to foreign companies considering doing business in Mexico. The areas of law summarized in this memorandum include: 1. Foreign Investment Law; 2. Competition Law 3. Maquiladora Operations; 4. Company Law; 5. Taxes; 6. International Trade; 7. Labor Law; 8. Environmental; and 9. Intellectual Property. Treaties, to which Mexico is a party, particularly the North American Free Trade Agreement (the “NAFTA”) among Canada, Mexico and the United States, may affect investors from certain countries and may modify the preceding areas of Mexican law..
 Although this memorandum makes numerous references to NAFTA and other treaties, it does not comprehensively address all instances in which Mexican law is modified or complemented thereby

    The People\u27s Trade Secrets

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    The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that public school examination fair and accurate? Is that voting machine working so that my vote gets counted? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government should have to publicly answer such questions, at least in a democracy. While initially the above does not sound too controversial, state law has made it problematic. Getting access to the information that would answer the above questions may not be easy because the person requesting the information may have to show that the information is not a government trade secret before it can be disclosed. Today, the government of the people can keep information from the people by way of the commercial, intellectual property law of trade secrecy. Strangely, the people--citizens of states and the United States--apparently have trade secrets that they themselves cannot see. In other words, there is information that the government itself creates on its own (a government trade secret ) and that courts and attorneys general have found meet the applicable definition of a trade secret. This Article examines whether a government trade secret should be allowed to exist and, if so, whether governments should be allowed to shield government trade secrets from public disclosure. Importantly, I am not focusing here on trade secrets shared with government by private industry or created by private industry on the public\u27s dime. That topic was the focus of an earlier article, Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure ( Secrecy ). In Secrecy, I examined the question of whether private entities engaged in the provision of public infrastructure, like voting machines and public Wi-Fi Internet access, should be allowed to shield information regarding their products and services from public disclosure by way of trade secrecy. This is a question of applying democratic values like transparency and accountability to private entities, the practical effect of which is in direct conflict with the purpose of trade secrecy, namely, keeping commercial information private. I concluded that, as applied to public infrastructure, trade secrecy should not be utilized by private entities engaged in its provision. While the conflict here is similar--transparency versus secrecy--the policy considerations are quite different. For example: do we need to incentivize innovation in government by way of trade secrecy? Should the government be in the business of leveraging competitive advantage in order to generate revenue or, much worse, for an unstated ulterior motive like avoiding public scrutiny? If the government is allowed to consider cost-effectiveness in its operations, should trade secrecy be the mechanism that allows for this consideration? As the application of trade secrecy by government is a very recent development (at least in the United States) and there are very few reported decisions dealing with the issue, its ramifications have yet to be explored in detail. I examine these questions and issues by explaining how trade secrecy and freedom of information laws interact, emphasizing the theoretically discordant nature of the government trade secret. In Part I, I examine the basic issues involved in finding and maintaining a trade secret. In Part II, I discuss several scenarios where government trade secrets have been asserted with questionable basis in the law, such as a county\u27s modification of voting machines, or where government trade secrecy has prevented the public from accessing valuable information, such as a public school system\u27s examinations and the minutes of public corporation board meetings. Additionally, I posit reasons why the problem of government trade secrets may be growing. In Part III, I outline the basic principles of transparency, accountability, and democratic governance. In Part IV I discuss possible solutions to the problems discussed, and conclude that trade secrecy is a poor fit in government for two primary reasons: (a) the utilitarian basis for trade secrecy does not fit well when applied to government, and (b) transparency and accountability, two core democratic values, are severely undermined when trade secrecy is used to prevent disclosure of otherwise public information

    The People\u27s Trade Secrets

    Get PDF
    The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that public school examination fair and accurate? Is that voting machine working so that my vote gets counted? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government should have to publicly answer such questions, at least in a democracy. While initially the above does not sound too controversial, state law has made it problematic. Getting access to the information that would answer the above questions may not be easy because the person requesting the information may have to show that the information is not a government trade secret before it can be disclosed. Today, the government of the people can keep information from the people by way of the commercial, intellectual property law of trade secrecy. Strangely, the people--citizens of states and the United States--apparently have trade secrets that they themselves cannot see. In other words, there is information that the government itself creates on its own (a government trade secret ) and that courts and attorneys general have found meet the applicable definition of a trade secret. This Article examines whether a government trade secret should be allowed to exist and, if so, whether governments should be allowed to shield government trade secrets from public disclosure. Importantly, I am not focusing here on trade secrets shared with government by private industry or created by private industry on the public\u27s dime. That topic was the focus of an earlier article, Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure ( Secrecy ). In Secrecy, I examined the question of whether private entities engaged in the provision of public infrastructure, like voting machines and public Wi-Fi Internet access, should be allowed to shield information regarding their products and services from public disclosure by way of trade secrecy. This is a question of applying democratic values like transparency and accountability to private entities, the practical effect of which is in direct conflict with the purpose of trade secrecy, namely, keeping commercial information private. I concluded that, as applied to public infrastructure, trade secrecy should not be utilized by private entities engaged in its provision. While the conflict here is similar--transparency versus secrecy--the policy considerations are quite different. For example: do we need to incentivize innovation in government by way of trade secrecy? Should the government be in the business of leveraging competitive advantage in order to generate revenue or, much worse, for an unstated ulterior motive like avoiding public scrutiny? If the government is allowed to consider cost-effectiveness in its operations, should trade secrecy be the mechanism that allows for this consideration? As the application of trade secrecy by government is a very recent development (at least in the United States) and there are very few reported decisions dealing with the issue, its ramifications have yet to be explored in detail. I examine these questions and issues by explaining how trade secrecy and freedom of information laws interact, emphasizing the theoretically discordant nature of the government trade secret. In Part I, I examine the basic issues involved in finding and maintaining a trade secret. In Part II, I discuss several scenarios where government trade secrets have been asserted with questionable basis in the law, such as a county\u27s modification of voting machines, or where government trade secrecy has prevented the public from accessing valuable information, such as a public school system\u27s examinations and the minutes of public corporation board meetings. Additionally, I posit reasons why the problem of government trade secrets may be growing. In Part III, I outline the basic principles of transparency, accountability, and democratic governance. In Part IV I discuss possible solutions to the problems discussed, and conclude that trade secrecy is a poor fit in government for two primary reasons: (a) the utilitarian basis for trade secrecy does not fit well when applied to government, and (b) transparency and accountability, two core democratic values, are severely undermined when trade secrecy is used to prevent disclosure of otherwise public information

    Combating the Enemy Within: Regulating Employee Misappropriation of Business Information

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    Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face disgruntled employees who are all too eager to download their employers\u27 sensitive, confidential, and proprietary information before terminating the employment relationship. However, the digital age, a global economy, and a highly mobile workforce have rendered the law utterly unreliable in addressing employee misappropriation. In enacting the Defend Trade Secrets Act ( DTSA ) in 2016, Congress sought to provide clear rules and predictability for everyone involved. Yet, the DTSA has already proven inadequate in creating any reliable expectations for employers or employees. This Note thus advocates for comprehensive statutory reform to address the unreliable legal framework. Specifically, this Note proposes that Congress amend the Computer Fraud and Abuse Act to limit its application in the employment context, and amend the DTSA to provide the Federal Trade Commission with the authority to regulate trade secret misappropriation

    A Comparative Study of Non-Compete Agreements for Trade Secret Protection in the United States and China

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    Non-compete agreements are commonly used in both the United States and China, and are regarded as an important means for employers to prevent employees or rival companies from using valuable trade secrets for competitive purposes. Despite their popularity, however, the enforceability of non-competes in both countries can be difficult to determine. In the U.S., the level to which non-competes are fully enforced varies by jurisdiction. While some state courts apply a “rule of reason,” others, such as California, prohibit non-competes altogether. In contrast, Chinese courts tend to support non-competes. This Article provides a comparative perspective of non-competes in the U.S. and China, highlighting different factors that the two countries consider when deciding enforceability. Specifically, courts in the U.S. focus on the existence of legitimate business interests, while courts in China focus on economic compensation. In order to curb the over-enforcement of non-compete agreements in China and keep the balance between trade secret protection and employee mobility, this Article recommends that China define the protectable business interest by statute and narrowly construe the validity of non-compete agreement

    Diversity As A Trade Secret

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    When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates request workforce statistics and related employment information, many companies have responded with virulent attempts to maintain secrecy, including the use of trade secret protection. In this Article, I use the technology industry as an example to examine the trending legal argument of treating diversity as a trade secret. I discuss how companies can use this tactic to hide gender and race disparities and interfere with the advancement of civil rights law and workplace equity. I argue that instead of permitting companies to hide information, we should treat diversity data and strategies as public resources. This type of open model will advance the goals of equal opportunity law by raising awareness of inequalities and opportunities, motivating employers to invest in effective practices, facilitating collaboration on diversity goals, fostering innovation, and increasing accountability for action and progress
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