Subject: Re: JBoss aquired by Red Hat
From: Thomas Lord <lord@emf.net>
Date: Fri, 05 May 2006 12:14:28 -0700

Anderson, Kelly wrote:
> I don't know about the interaction of "prior art" and
> trade secrets, but there are some interesting questions in that realm,
> to be sure.
>   
Having done a bunch of layperson reading on this recently, I'll try
to summarize on that point.   If you treat my reading as if I were a
legal professional, you get what you deserve :-)

A patent protects rights to use the content of an idea on the condition
of the  weak form of disclosure involved in making a patent application.
"I had this clever idea and, as far as the patent office is concerned, I was
the first to come up with.   Therefore, you may not use this idea, no
matter how you got it, without my permission."   Prior art can shatter
my claim and invalidate my patent.  


A trade secret treatment restricts rights about the expression of
an idea along a *specific heritage of transmission*.  "I will tell
you this but you must not tell anyone else."   If a third party has
the same good idea, whether prior to or after, well -- good for them.
I have no claim against them.   I only have potential claims against
people I tell my secret to, if they tell someone else.   Unless, that is,
the secret becomes common knowledge.

I *think* that the details matter in an interesting way.   Suppose
that the formula for Coca Cola is (implausible, I know)
independently discovered by someone who thinks nothing more
than "Hey, this tastes pretty good!"   Now, if I'm in on the
Coca Cola trade secret I can then say to other people "Hey,
Joe Nobody published this formula that tastes pretty good" but
I probably can't confirm to third parties "Yes, that is indeed
the same formula Coca Cola uses."

-t