Trade Secrets as Property: Theory and Consequences

in the abstract, as a matter of defining a company's rights against third-party outsiders.This approach is too limited because virtually all trade secret disputes involve former employees.Something of a Copernican reversal is needed: Once we consider problems from a new perspective, we more readily recognize the balance of competing interests that is at stake in the debates over trade secrets as property rights.This Article has three parts.The first part is practical: it will explain why a property rights conception can make a difference in the outcome of a trade secret dispute between a former employer and employee.This part will explore areas of trade secrets where courts reach inconsistent results depending on their use of relational or property concepts (whether explicit or implicit).This discussion of conflicts in the case law comes before the theoretical discussion that is at the heart of this Article, because it is only with an understanding of how these cases unfold that the theoretical discussion will be compelling.Part of the contribution of this Article is to locate and parse trade secret cases whose differing results appear to be driven by incompatible underlying theories.The second part is an overview and critique of the scholarly debate about whether trade secrets are property.This part will both explore non-property theories in light of the case law discussed beforehand and offer a balance between employer and employee under a limited property conception.The third and final part seeks to define the public domain for trade secret law, with an analysis of how the property rights debate plays directly into the difficulties currently facing that project.II.