Friday, July 24, 2015

Technology Law │ Trade Secrets and Source Code

Intellectual Property Law - Trade Secrets and Source Code

Intellectual property law lawyers are scratching their heads as state courts are struggling with archaic laws on trade secret theft cases. For instance, the New York Supreme Court determined in a trade secret case ruled, resulting in overturning a conviction as it defined ‘tangible’ as not the same as when source code is electronically transferred. The court determined that electronically transferring source code is not the same as replicating the code.   The judge’s decision was based on a dictionary definition of ‘tangible’ and opining that electronically transferring the source code to a different medium was not considered a reproduction.

The court thought that in order for there to be an infringement there had to be a physical manifestation in a physical aspect. This certainly overlooks the capability of current technology and cements the notion of archaic laws and not-up-to-date judges. The court specifically stated that “computer code does not become tangible merely because it is contained in a computer.”

What can be a valid stance on the issue is the recognition by judges of what was claimed in the Beaugard case (In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995)) where computer readable medium (“CRM”) is used within the system which inherently protects the intellectual property of the source code as it functions.

Under this claim, the aspect of readability within a program in a system obviates the believed obligation of there being a ‘tangibility’ in physical form for there to be evident infringement and theft of trade secret and could finally lead to the acknowledgement respecting the fact of transferability and readability being an effective aspect of operability of a reproduction.

Lorenzo Law Firm, P.A. copyright 2015.

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