Abstract
Information that is “readily ascertainable by proper means” cannot qualify as a trade secret. This requirement—what this Article calls the “readily-ascertainable bar”—is codified in the Uniform Trade Secrets Act (“UTSA”) and the federal Defend Trade Secrets Act (“DTSA”). Yet it is poorly understood and frequently misapplied. Drawing on historical case law and archival drafting materials from the UTSA, this Article shows that this bar was adopted to overrule a line of common law cases in which the courts had protected information revealed in publicly marketed products or expired patents. The UTSA’s drafters rejected this approach, instead seeking to deny trade secret protection for information that could be quickly ascertained from products on the market or from public sources. They did so for clear policy reasons: to protect the “public domain,” limit the effective duration of trade secrecy rights, and preserve incentives to patent. Additionally, they did so for a legal reason: to avoid preemption by federal patent law.
Recommended Citation
Camilla A. Hrdy,
Trade Secret Law’s Readily-Ascertainable Bar: Then and Now,
91 Mo. L. Rev.
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Available at: https://scholarship.law.missouri.edu/mlr/vol91/iss3/9