TRADE SECRETS AS THEY AFFECT THE GOVERNMENT

If I were to say to you that the Government is not a gentleman, you would perhaps applaud, in view of the nearness of April 15th, and the fact that you are working on your income tax returns. However, the reason I would say this has nothing to do with income tax. It has to do with trade secrets and technical data, and, in fact, I have said this in a number of instances in the past several years. I say it with no disrespect. I am forced to say it merely to explain the fact that the Government cannot always act in a given situation as a gentleman would, since the Government is a person, with its conduct being determined by its own statutory laws. We often hear it said that ours is a Government of law and not of persons. This statement is of special significance in the field of trade secrets or technical data because the rights and obligations in trade secrets and technical data are fixed almost entirely by the common law. The rights and obligations of the Government, however, are fixed almost entirely by statute. The Government cannot be sued unless it has consented to be sued, in the situation complained of. It is for these reasons that I have had to say the Government is not a gentleman when it has obviously transgressed some right which would be justiciable as between private parties, but for which I could give no assurance to my complainant that the Government would be liable at law. However, I am happy to state that the Comptroller General since December 22, I9601 has been holding the Government to the standards of a gentleman in those fields of activity wherein the Comptroller General has responsibility, namely, in the approval of contract awards. I shall discuss this at a later point in my talk. I would like to point out an important difference in legal status between trade secrets and patents with respect to Government liability. Patent and copyright infringement are torts, and the Government has consented to be sued for these infringements under 28 U.S.C. 1498. The Government is therefore liable for patent and copyright infringement the same as any other person. There is one important difference, however. An injunction cannot be obtained against the Government to compel it to discontinue infringement. The statute