intellectual-property trade-secret
Can trade secrets be so broad that they prevent employees from working in the same field or doing academic research?
<p>We all know that <a href="https://www.nolo.com/legal-encyclopedia/trade-secret-basics-faq.html" rel="nofollow noreferrer">employees have a duty not to disclose or use trade secret information.</a> But can trade secret be defined so broadly that, because of the duty of non-disclosure, an employee can no longer do any work for anyone else in the field, including publishing academic papers? </p>

<p>On the one hand, trade secrets can be ideas. On the other hand, because the same science and technology are behind the workings of everything, ideas are inevitably connected to one another. For example, we know that all math formulas can be derived from well-known axioms and theorems.  If an employee derives a non-trivial math equation at work that presumably is key to the firm's competitive edge, it becomes a trade secret. Is it true? If it is true, it is fine, although it can be a bit awkward occasionally. Imagine she goes back to school. "Hey professor, I know the answer to that question, but I cannot write it down on the exam paper, because the answer happens to be identical to a trade secret of my former employer that I derived 25 years ago, which I have a duty not to disclose."</p>

<p>Take it for granted that the above derived equation is a trade secret. After leaving her job, she derives another similar equation under a different circumstance, again through general math theorems. Is this new equation trade secret? If it is true, it would be a lot more awkward, because then she has to say to her professor: "Hey professor, I deserve an A, but I cannot answer any of the questions in the exam, because all of them are in whole or in part related to a trade secret formula I derived for my former employer 25 years ago."</p>

<p>If Newton had discovered gravity when he had been working for some firm to whom the law of gravity was important, then it appears to me that the law of gravity would become a trade secret, and it essentially means Newton could not do physics for anyone else. Of course, it would not prevent me, Tom, who had never worked for that firm, to rediscover gravity and publish it.</p>

<p>People were asking for realistic examples. One example I can think of is algorithms in the game industry. In 3D games, it is necessary to detect if a character bumps into the wall or other characters. This is called collision detection. The algorithm is some mathematical equations derived from basic 3D geometry. A lot of work is in the public domain (thank God!). But let's say that a star software developer found some opportunities to optimize the public algorithm to make it run faster on some occasions, and went ahead to make the tweaks at work, so that now the algorithm is 30% faster and important to the competitive edge. The code itself of course belongs to the firm by copyright laws. However, what about the tweaks that are essentially math equations? My guess is that they belong to the firm too as trade secrets. Going further, let's say the person leaves for a different firm or goes on to pursue a Ph.D. in 3D geometry. Is she not only not allowed to use the same tweaks (not code but only abstract equations derived for the last firm), but also likely not able to make new, similar tweaks? You may say maybe she should be creative and make different tweaks. But the challenge she is trying to solve (the algorithm is too slow) is the same and the solution is similar too, because everything is derived from first principles, and there is no getting around. It is like asking "Can you be more creative and come up with a new formula that calculates how long it takes for an apple to drop to the ground from the three-story house?" Not possible. Okay maybe one can use the relativity theory for the new firm. But for the next, next job, she runs out of formulas. From the view of the new firm, it is not that bad, because it is perfectly legal for her colleague, who has never worked for her old firm, to invent these same tweaks or similar tweaks. But for her personally, the consequence was terrible.) In her Ph.D. study, does it mean that she can never derive any equations that involve the derivation of the tweaks? (Because math theorems are all linked with each other, does it mean she can never work on math? Maybe she can write novels instead.)</p>

<p>If this is true, the consequence is profound. It implies that a lot of high-level creative knowledge worker will have to switch field when they switch firm or go back to school. </p>

<p>The reason for this question is twofold:</p>

<ol>
<li><p>There are a lot of resources and discussions on how to protect trade secrets from the employer's perspective, but little is said about the employee's rights.</p></li>
<li><p>Trade secret protection, without clarity, can be abused by the deep-pocketed as a tool of intimidation, hampering innovation. Explicit lawsuits might be rare, but the implicit threats of potential lawsuits can intimidate people out of doing what they are talented to do. </p></li>
</ol>

<p>Can an idea be a trade secret?  Certainly -- most trade secrets are ideas.</p>

<p>The thing is, unlike copyright, patents, or trademarks, <a href="https://en.wikipedia.org/wiki/Trade_secret" rel="noreferrer">trade secret</a> isn't a very strong form of protection.  Trade secret legislation only protects against certain "unfair" methods of obtaining the secret.  Independent invention is perfectly fine: if I figure out on my own what the secret formula for Coca-Cola is, there's nothing the Coca-Cola company can do to stop me.  Reverse engineering is also fine: if I take a bottle of Coke to a chemistry lab and analyze the ingredients, there is again nothing the Coca-Cola company can do.</p>

<p>Additionally, a company wishing to make something a trade secret needs to take active steps to preserve that secret.  Continuing the Coca-Cola example, they might require anyone reading the formula to first sign an agreement to not disclose what they read.</p>
