This article discusses when a trade secret misappropriation claim can be premised on the acquisition, disclosure, or use of a product or method derived from a trade secret, rather than the acquisition, disclosure, or use of a trade secret itself. Although this question is likely to take on increasing importance as digital products that were made through the use of trade secrets and that can easily be copied become a larger part of everyday life, courts have rarely focused on it and have not come to any consensus. In this article, we survey the existing, inconsistent case law and analyze it in light of the applicable statutory text and relevant public policy considerations. The article provides some conclusions and takeaways for practitioners.
Benjamin J. Bradford & Remi J.D. Jaffre, The Uncertain Protection of "Derivative" Trade Secrets, 18 J. Marshall Rev. Intell. Prop. L. 241 (2019)