Protecting a Proprietary Interest in Concepts and Ideas: Brave New World or Just "Trade Secrets Lite?"

We may analogize the law of intellectual property to the departments in a general store. There, well-lit, in the front aisles, is everything we might want to know about trademarks, copyrights and patents. Shelves upon shelves of information describe the processes of creating and owning an interest in these species of intellectual property, outline the elements of an infringement claim, lay out the methodologies of proof of a claim, and generally provide the practitioner with reasonable clarity and certainty in pursuing the prosecution or defense of cases arising under these legal regimes. 

Somewhat further to the rear, but still fairly well lit, is the section addressing trade secrecy, including clearly-marked areas defining the elements of a claim, methods of proof and rules of procedure, available both at common law and under the various incarnations of the model statutes which have more and more become the norm for the state law protection of trade secrecy. Way in the back – in a dim, gloomy, unswept and generally poorly-maintained alcove – we find something called “confidential and proprietary information.” Very little is available there to inform and enlighten the practitioner shopping for guidance. 

What, exactly, is this species of intellectual property? Most of the slim pickings available tell us what it is not, but almost nowhere will we find any substantive definition of what it is. We can find sources which tell us that it is somehow separate and distinct from a trade secret, and the proper subject of legal protection, but exactly what the difference is, no one seems to be able to say. We even find sources which seem to suggest that “confidential and proprietary” information is not really a category of intellectual property at all, but something else entirely, although following the trail of exactly what that might be leads us ultimately to a dead end of confusion and uncertainty.

Join attorney Jeffrey Ullman as he sheds light on an area where there is largely darkness and unintelligibility. Specifically, Mr. Ullman addresses questions such as: 

• What is “confidential and proprietary” information? 
• To what extent does the rubric properly extend to concepts and ideas, rather than facts or processes? 
• What are the elements of a claim alleging infringement? 
• In the setting in which misappropriation claims most frequently arise – the post-employment context – what are the rights and obligations of former employees to the use and exploitation of what they have learned from their former employer? 

These questions and more guide the discussion of a growing and widening area of concern for practitioners.

Learning Objectives:

I.    Coherently analyze the legal viability of claims alleging the misappropriation of “confidential and proprietary” information, with emphasis on the application of the analysis to cases involving allegedly misappropriated ideas or concepts

II.   Separate bona fide claims from wasteful boondoggles

III.  Develop a methodology for protecting the interests of clients, whether as plaintiff or defendant