Using Litigation to Understand Trade Secrets: A Preliminary Exploration
By Josh Lerner

In recent years, there has been a growth in interest among economists in the litigation of intellectual property, as opposed the traditional focus on the grants of these rights and their subsequent citation in other awards. This new focus is very natural, given the critical importance of the litigation process in enforcing intellectual property rights. To date, though, the literature on litigation of intellectual property rights has almost exclusively focused on patents. This orientation is readily understandable: not only are patents a critically important property right, but they are also relatively straightforward to track. The major alternative forms of protection, such as trade secrets and copyrights, are often more difficult to empirically examine.

Despite these challenges, trade secrets are a key form of protection for many firms that either choose not to or cannot patent their discoveries. Thus, in this paper I seek to explore what can be gleaned empirically about this form of protection using the recorded decisions associated with trade secret-related civil litigation.