The rights conferred by Congress in the form of the patent grant is, "the right to exclude others from making, using, offering
for sale, or selling" the invention in the United States or "importing" the invention into the United States. This right is
solely exclusionary, and must be enforced by the patentee. In other words, in the grant of patent, the government is not conveying
any exclusive rights to affirmatively make, use, offer for sale, sell, or import the patented technology, but rather the right
to exclude others from practicing the invention. Once a patent is issued, the patentee must actively enforce the patent through
the courts in order to stop infringement.
A trade secret is more conceptual and less tangible than a patent. Generally, it is agreed that trade secrets encompass the
proprietary information of a company (or individual), regardless of whether it involves a composition or a process, or whether
it is patentable. Almost all states have adopted parts or all of the Uniform Trade Secrets Act. According to the act, a "trade
secret" is information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i)
derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
Trade secrets derive their value (whether actual or potential) from being generally not known to, or readily ascertainable
by proper means by other persons, who can or may obtain economic value or advantage over others from their disclosure or use.
Therefore, trade secrets must be subject to reasonable steps to keep the information secret, in the sense that the information
is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible
to persons within the industries that normally deal with the particular kind of information.
A trade secret should be protected from improper exploitation, by physical segregation of persons from certain confidential
and proprietary information. An example of this might be assembly line or process development workers where each is exposed
to only a specific part of a complex manufacturing process. Another way to protect trade secrets involves establishing contractual
relationships, such as nondisclosure or confidentiality agreements, or this type of language within more complex agreements.
The remedies available for trade secret misappropriation address unfair competition from possession of the proprietary information.
According to the Uniform Trade Secrets Act, misappropriation is characterized as:
(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired
by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who
(A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason
to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to
acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived
from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before
a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been
acquired by accident or mistake.
Remedies for misappropriation or improper use of a trade secret include monetary damages, recovery of profits, a reasonable
royalty, and injunctive remedies. Actual or threatened misappropriation may be enjoined. Upon application to the court an
injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional
reasonable period of time in order to eliminate a commercial advantage that otherwise would be derived from the misappropriation.