Most people stop taking math in high school. Geometry was often the culprit that either made someone enjoy solving problems involving Greek letters or become completely disinterested. All those arcs and triangles…how does any of that apply to life as an attorney?

Well, here comes another geometry lesson: the Venn Diagram of intellectual property (IP), once thought to have only a minimal intersection between patents and trade secrets, may now include copyrights, and possibly trademarks, as protectable through trade secret law. 

Where did this new math come from?

The California Court of Appeal, in Altavion, Inc. v. Konica Minolta Systems Laboratory Inc., held that ideas can be protectable as trade secrets.

Contrary to the Court’s opinion in Altavion, patents do NOT protect “ideas.” Patentable subject matter is limited to: new and useful processes, machines, articles of manufacture, or composition of matter, or any new and useful improvements thereof. Abstract ideas are specifically excluded from patent protection.

Lexicography aside, the Court of Appeal relied, at least in part, on the definition of a trade secret as “information” to determine if an idea (whatever the court meant by “idea”) can be protected.

The Uniform Trade Secrets Act (UTSA), adopted in California as Civil Code § 3426 et seq., “creates a statutory cause of action for the misappropriation of a trade secret.” The statute defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

The Court of Appeal concluded in Altavion that “if a patentable idea is kept secret, the idea itself can constitute information protectable by trade secret law.” The logic of Altavion suggests that secrets that are legally protectable elsewhere could fall under the definition of “information” in California even absent that other protection. Perhaps I should keep this secret.

Don’t lawyers apply the holding in one case to the facts in another case to show the court why one side should win? Wouldn’t Altavion’s exact holding apply to, say, facts involving “an expressible form of an idea or information that is substantive and discrete?”

The (summary judgment) argument might go: since an idea is protectable as a trade secret, and information is protectable as a trade secret, a substantive, discrete, expressible form of an idea or information must be protectable as a trade secret.

In the vernacular of a mathematical proof, “quid erat demonstratum.” 

By the way, a substantive, discrete, expressible form of an idea is … a copyright.

Would a trademark-eligible logo (isn’t a logo just a “pattern”?) or character development in a script (a “compilation”?) provided to another under reasonable secrecy also be protected under the USTA? 

Who was that Pythagoras guy again?