Insights
Publications

Protecting “What Not to Do” as a Negative Trade Secret

October 5, 2022 Articles
Daily Journal

“Negative trade secrets”—i.e., secret know-how about what does not work—are generally protectable in California, but in practice have proven challenging for courts and litigants to discern.  While a trade secret is a company’s intellectual property, an employee’s “general knowledge, skill, and experience acquired in his or her former employment” is not.  The Ret. Grp. v. Galante, 176 Cal. App. 4th 1226, 1237 (2009).  The concept of “negative trade secrets” sits uncomfortably between these two categories.

Consider Thomas Edison’s (possibly apocryphal) quote about his lightbulb experiments: “I haven’t failed, I’ve just found 10,000 ways that won’t work.”  Imagine that Thomas Edison’s assistant quit and joined a competitor.  It’s easy to understand the value of knowing those 10,000 failed attempts; that “negative know-how” would allow the competitor to start on attempt 10,001.  But it’s much harder to understand how courts can protect these failed attempts as negative trade secrets.  Can a court really hold Edison’s assistant liable for not re-attempting what he knows won’t work?  Must he re-try all 10,000 prior failures?  Such an outcome would seem to contradict California’s public policy goals favoring innovation and employee mobility. 

Click here to read the full article.

Firm Highlights

News

Farella Lawyers Recognized in The Best Lawyers in America® 2024 Edition

Read More
News

USAA Wins Patent Agreement With Discover, Vows To Keep Going After Banks

Eugene Mar spoke to American Banker for the article, "USAA Wins Patent Agreement With Discover, Vows To Keep Going After Banks." Link (subscription required): https://www.americanbanker.com/news/usaa-wins-patent-agreement-with-discover-vows-to-keep-going-after-banks Eugene said this becomes a business decision for a...

Read More
News

Farella Braun + Martel Attorneys Named to 2023 Northern California Super Lawyers and Rising Stars

Thirty-eight Farella Braun + Martel lawyers were named to the Super Lawyers and Rising Stars lists of top attorneys in Northern California for 2023. 2023 Farella Northern California Super Lawyers: Carly Alameda – Business...

Read More
Publication

What Patent Bills Would Mean for Infringement Litigation

Two bills recently introduced in Congress could significantly affect the current patent litigation landscape. The bipartisan bills are titled the Patent Eligibility Restoration Act of 2023 and the Promoting and Respecting Economically Vital American...

Read More
Publication

Fair Use Question Goes to Trial in AI Copyright Lawsuit – Thomson Reuters v. Ross Intelligence

On September 25, 2023, a United States Circuit Judge determined that fact questions surrounding issues of fair use and tortious interference required a jury to decide media conglomerate Thomson Reuters’s lawsuit against Ross Intelligence...

Read More
News

Farella Braun + Martel Earns 2024 Best Law Firms® Rankings

Read More
Publication

Takeaways From the Proposed PREVAIL Act

Two proposed bills recently introduced in Congress have the potential to greatly impact the current patent litigation landscape. The bills are titled the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act and the Patent...

Read More
Publication

AI and Trade Secrets: A Complicated Friendship

Excitement has been growing for decades around the development, training, and use of generative AI, but this past year the excitement escalated into a frenzy. Everyone is considering how AI impacts their business. This article...

Read More
Publication

It Wasn’t Me, It Was the AI: Intellectual Property and Data Privacy Concerns With Nonprofits’ Use of Artificial Intelligence Systems

In today's rapidly changing technological landscape, artificial intelligence (AI) is making headlines and being discussed constantly. To be sure, AI provides a powerful tool to nonprofits in creating content and exploiting for countless cost-effective...

Read More
News

Farella Lawyers Recognized as 2023 IP STARS by Managing Intellectual Property

Farella Braun + Martel intellectual litigation partners Daniel Callaway , James Day , Jeffrey Fisher , Winston Liaw , and Eugene Mar were recognized by Managing Intellectual Property in the 2023 edition of IP...

Read More