Jenner & Block

“The Uncertain Protection of ‘Derivative’ Trade Secrets,” The John Marshall Review of Intellectual Property Law

In this article, Jenner & Block Partner Benjamin J. Bradford and Associate Remi J. D. Jaffre examine when a trade secret misappropriation claim can be premised on the acquisition, disclosure or use of a product or method derived from a trade secret, rather than the acquisition, disclosure or use of a trade secret itself.  According to the authors, although easily copied digital products are made through the use of trade secrets, courts have rarely focused on these issues.  The authors then survey and analyze the existing case law, providing conclusions and takeaways for practitioners:  “Whether derivative trade secret claims are cognizable is still an open question in many jurisdictions.  The cases on this issue are inconsistent and generally focus on the specific facts before them without addressing the broader conceptual issue of whether such claims should be recognized.”