SJ Quinney College of Law, University of Utah


Trade secrets offer an alternative to patent - ineligible innovations and to the problems and perils of protecting, defending and enforcing patents. Although there is currently limited trade secret legislation on the national level, nearly all states have adopted, with little substantive variation, the Uniform Trade Secrets Act. Unlike patent - eligibility requirements that precluded software in Gottschalk, Diehr, Alice, and Tenon from patent protection, no trade secret is automatically deemed out of scope. Trade secrets encompass anything of value, so long as it is not generally known and reasonable steps are taken, such as the use of employment agreements that include confidentiality and non-compete clauses, to preserve the secrecy of the invention. Moreover, there are active efforts to put into place a more robust federal system of trademark protection, including the Defend Trade Secrets Act and the Trade Secret Protection Act, which both seek to create benchmark standards for civil trade secret misappropriations in federal courts by amending the Economic Espionage Act.