Kentucky Fried Chicken may be teaching lessons to the life sciences industry about the pluses and minuses of trade secret law.
In response to recent Supreme Court decisions that have invalidated patents derived from products of nature, there have been calls, most recently at the BIO 2015 International Convention, for life sciences companies to expand their reliance on trade secret law and lessen their standard reliance on patents.
I wrote after the convention that, under patent law, how inventions work is public information, with the patent holder being able to sue those who infringe the patent. Those who come after, however, can build on the knowledge in the patent. With trade secret law, no information about the invention is released. They are two different worlds, one filled with information, the other filled with silence.
The key to trade secret law is secrecy. You MUST keep the details of the invention a secret. And you now have the added protection of a newly signed federal trade secret law—the Defend Trade Secrets Act—that provides for federal criminal penalties for foreign economic espionage and trade secret theft. But if the secret inadvertently is released to the public, including your competitors, or if a competitor is able to discover the secret by reverse engineering, then your protection is lost.
KFC has had two recent brushes with potentially losing the trade secret protection for Colonel Sanders’ secret recipe of 11 herbs and spices for Kentucky Fried Chicken. Not so long ago, a young couple who were living in a house where Colonel Sanders once stayed found a notebook in the attic with a page listing 11 ingredients. They called KFC and said they thought they had found the secret recipe. KFC attorneys demanded the notebook. They took the couple to court, and, after KFC was allowed to look at the notebook under court supervision, KFC announced that the notebook page wasn’t the secret recipe. It evidently represented Colonel Sanders’ unsuccessful experimentations with stuffing, which KFC still doesn’t sell.
Last month, in an interview with a newspaper, a Sanders family member showed the journalist a family album that included a piece of paper listing 11 ingredients. The relative said it was the secret recipe, although he later tried to walk that statement back. The newspaper used the recipe, and the chicken tasted fine. KFC will neither confirm nor deny whether the recipe the newspaper has is the trade secret.
Life sciences companies take note: This is part of the sometimes nerve-wracking world of trade secrets. That world has advantages. You don’t have to do filings with the Patent and Trademark Office. All you have to do is keep the invention secret. But that isn’t always easy.
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