Are trade secrets nothing but “baby patents”? After incredibly derogatory and defamatory statements about trade secrets, which I have heard in the past, such as, “trade secrets don’t have a single redeeming virtue” from a corporate chief IP counsel and “trade secrets are the cesspool of the patent system” from a Washington, DC IP professor, comes the dismissive statement that trade secrets are nothing but “baby patents”. This opinion was expressed in a recent meeting, which I attended, of West Legalworks in New York City on “Advanced Strategies for Cultivating, Exploiting, Tracking and Protecting Your Intellectual Property,” by the moderator of a Roundtable Discussion on “Choosing the Optimal IP Strategy for Your Company”.

As I cover trade secrets, trade secret licensing and hybrid patent/trade secret licensing in my Technology Licensing course, it occurred to me that this “baby patent” comment would be a good problem for the final exam in this course on December 13, 2007. I asked the students to write a brief essay on whether this statement is a correct or an incorrect characterization of trade secrets.