[Commons-Law] RE: commons-law Digest, Vol 19, Issue 13

Mon Feb 14 10:15:19 IST 2005

I'd be interested to know - since we are discussing this in the Indian 
context, whether anyone knows of any trade secret cases in India.

While there may be a common law interest and perhaps even a right, I 
would be reluctant to come to the conclusion that there was title. Title 
must be created by operation of law and where the basis of the right in 
the trade secret is the very fact that it is being kept secret, it is 
difficult to state that title has been established on the basis of the 
secrecy.

Taking the argument further, title in property can be declared with no 
fear that it might be lost. However, the very nature of a trade secret 
is that when it is disclosed to the public the owner of the trade secret 
immediately loses not only the "title" but also any right and interest 
that he had in the secret. The only right that remains is the right 
under contract to proceed against the person who disclosed the secret - 
and that is a right in personam.

Various states in the US have enacted trade secret legislation 
conferring title on such secrets. In those cases the owner of the secret 
is granted title under law and then assumes a right in rem in respect of 
the secret. No such legislation exists in India. I would find it hard to 
treat the owner of a trade secret as holding title over the secret 
regardless of the facts of the particular case.

Rahul

--

Rahul Matthan
Partner
Trilegal

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sudhir at circuit.sarai.net wrote:

>Dear Thomas
>
>The question was posed in terms of broad principle and I will reply in the
>same tenor - in this area of IP law, more than many others, the factual
>circumstances can have a huge impact. I want to supplemnet Sunita's
>observations on all three points... so here it goes.
>
>1. For something to be protected as confidential information it must
>satisfy a few key criterion: it must be specific, non trivial information
>that is not already in the public domain.[1999 FSR 235] This enquiry is
>analogous to establishing that something is a copyright work - except that
>the principles of law here are common law based. When these conditions are
>satisfied then X may be said to have an 'interest' in the information.
>
>2. The law of confidence generates obligations through the law of contract
>as well as through trust like fiduciary relationships. Both of these are in
>personam rights and NO in rem rights are involved. So in your example much
>would turn on the circumstances in which X passes on the information to Y.
>
>3. Legally one has TITLE only to property - it does sound odd to say that
>one has TITLE to one's reputation - a personal interest protected by the
>common law.
>
>Hope that helps
>Sudhir
>
>
>On February 13, 7:10 am "Sunita Sreedharan" <sunita_sreedharan at hotmail.com>
>wrote:
>  
>
>>Dear Thomas,
>>
>>On the premise that we are speaking of this situation in India,
>>please note that trade secret is protected under common law.  Now for
>>your questions:
>>1.  X has a right/interest in the process even if it is not patented;
>>provided the said process is not already in public domain and X has
>>not published the process for common consumption by way of seminar,
>>article etc
>>2.  Yes, but in so far has X has taken due care to see that the
>>process is kept a secret
>>
>>3.  Yes, X has a title to it, if he can prove that he had taken due
>>care to protect his trade secret; the said trade secret is not common
>>knowledge or obvious to a person with reasonable skill; and that the
>>said trade secret gives him competitive edge in the market.
>>
>>A good example is of course Coca Cola formula
>>
>>Signing off
>>
>>Sunita K. Sreedharan
>>
>>Hypothetical situation:
>>X discovers a manufacturing process which he does not patent. The
>>process is known only to him and remains a trade secret. He seeks to
>>sell the know-how for this process to Y.
>>
>>
>>1) Does X have a right or interest in the process, although it was not
>>patented?
>>2) Is there a right in rem against others using this process?
>>3) Most importantly, does X have TITLE to the trade secret?
>>
>>
>>From: commons-law-request at sarai.net
>>Reply-To: commons-law at sarai.net
>>To: commons-law at sarai.net
>>Subject: commons-law Digest, Vol 19, Issue 13
>>Date: Sat, 12 Feb 2005 12:00:07 +0100 (CET)
>>
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>>Today's Topics:
>>
>>    1. question on trade secrets (Thomas John)
>>
>>
>>----------------------------------------------------------------------
>>
>>Message: 1
>>Date: Fri, 11 Feb 2005 20:16:04 +0530
>>From: Thomas John <aashish.thomas.john at gmail.com>
>>Subject: [Commons-Law] question on trade secrets
>>To: commons-law at sarai.net
>>Message-ID: <9f871321050211064617af6952 at mail.gmail.com>
>>Content-Type: text/plain; charset="US-ASCII"
>>
>>This is a frustratingly simple-sounding IPR question that I
>>desperately need an answer to but I can't seem to figure it out. Can
>>anyone help me out on this?
>>
>>Thomas.
>>
>>
>>======
>>
>>
>>Hypothetical situation:
>>X discovers a manufacturing process which he does not patent. The
>>process is known only to him and remains a trade secret. He seeks to
>>sell the know-how for this process to Y.
>>
>>
>>1) Does X have a right or interest in the process, although it was not
>>patented?
>>2) Is there a right in rem against others using this process?
>>3) Most importantly, does X have TITLE to the trade secret?
>>
>>
>>======
>>
>>
>>------------------------------
>>
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>>End of commons-law Digest, Vol 19, Issue 13
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>>
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