This Comment discusses the applicability of federal patent law as it relates to the possible preemption of state trade secret law. To more fully understand this preemption, this Comment considers the means by which the trade secret was obtained and the subject matter of the trade secret. The premise of this article is that it is improper to focus exclusively on the subject material of the trade secret, as Kewanee Oil v. Bicron Corp. did, or to focus exclusively on the means by which the trade secret was obtained, as the other circuits largely have. Instead, this article suggests that both the subject material of the trade secret and the means by which it was obtained should be examined in relation to the possible impact on the free passage of ideas and methods, on the one hand, and the impact on the protection of an inventor's own ideas and methods, on the other hand. Section II briefly describes the two systems of protection. Section III discusses the trend toward federal patent law preemption of state unfair competition law. The holdings of courts of appeals conflicting with Kewanee are examined in Section IV. Kewanee pushed preemption one step further, holding that federal patent law preempted the related area of state trade secret law with respect to patentable items; this development is examined in Section V. Finally, Section VI concludes with possible implication of an expected Supreme Court decision in this area.
Factors to Focus On: Federal Patent Preemption of State Trade Secret Law,
53 Neb. L. Rev. 226
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