Professor Camilla Hrdy participated in a major intellectual property conference hosted by the High Tech Law Institute at the Santa Clara University School of Law.
The conference, held at Santa Clara Law, in Santa Clara, California, brought together leading scholars from across the country to reflect on the past, present, and future of intellectual property law. Across four panels, scholars examined how IP law “started,” how it is “going,” what has gone right, what has gone wrong, and where it may be headed in the coming decades.
Professor Hrdy spoke on the closing panel, “Where Do We Go From Here?”, alongside BJ Ard (University of Wisconsin), Colleen Chien (UC Berkeley), Keith Robinson (Wake Forest), and Jennifer Rothman (University of Pennsylvania). The panel was moderated by Edward Lee of Santa Clara Law.
Professor Hrdy spoke about trade secret law. She observed that, despite federalization in 2016, there remains a surprising lack of consensus about the meaning of fundamental statutory terms, such as “generally known,” “readily ascertainable,” “independent economic value,” and “improper means.” She observed that courts continue to disagree about, or misunderstand, essential issues in trade secret litigation, such as identification, standing & ownership, so-called inevitable disclosure injunctions, and the overlap between trade secret and contract claims.
Professor Hrdy then moved to the topic of solutions. The Supreme Court, she noted, seems entirely uninterested in taking trade secret cases. Congress, for its part, failed to add clarity in 2016, when it passed the Defend Trade Secrets Act. There is virtually no discussion of substantive issues in the legislative history. Practitioners, meanwhile, often lack the time to think at a high level about big-picture questions, as they are focused on dealing with the disputes in front of them.
As a solution, Professor Hrdy argued that there need to be more academics writing in the trade secret law field. There need to be more IP scholars thinking deeply about trade secret law issues, in specific, as opposed to adjacent trade secrecy issues that relate to patent law. She also urged more interaction between academics and practitioners, who are in the trenches dealing with these laws, and who tend to have a much better sense than academics about which issues really matter on the ground. Practitioners can give academics a sense of what is not known, which can be just as important as what is known.
“So my big solution,” she ended, “is that we need more people thinking about solutions.”
The conference also honored the Honorable William H. Alsup of the U.S. District Court for the Northern District of California for his 27 years of public service on the bench. Judge Alsup has presided over some of the most consequential technology and IP cases of the modern era. The conference included a remarkable, touching, and insightful fireside chat between Judge Alsup and by Paul Grewal, former U.S. Magistrate Judge who has worked closely with Judge Alsup in the past.