Defining Trade Secrets in the United States: Past and Present Challenges – A Way Forward?

When approaching an analysis of a particular area of law, one must initially locate and understand the definition of its core concept. Yet in trade secret law serious obstacles impede the process. Unlike other intellectual property (IP) regimes, such as copyright and patent law, the core concepts of which are subject to unitary definitions governed by international treaties or domestic statutes, the trade secret concept has received no parallel treatment and, until recently in the United States, remained mainly defined under common law. Subtle differences in the way trade secrets were judicially conceived often generated conflicts between courts, opening the door for the application of divergent rules on similar points. This confusing background prompted the individual U.S. jurisdictions to gradually orient towards implementing statutory provisions in defining trade secrets. Despite the fact that U.S. trade secret law has since seen several statutory interventions at state and federal level, the precise meaning and definitional parameters of the concept remain elusive. This paper probes the existing trade secret definitions applicable in the U.S. via analysis of the divergent sources of law that underscored their formulation from the past until the present and identifies the challenges pertinent to their application in practice. Its aim is to analyze and compare these legal sources: first, to determine whether the current definition for the concept of a trade secret is adequate, or whether perhaps the existence of the multi-tier system impedes a party’s ability to identify trade secrets in a cross-border context; and second, to investigate whether a unanimously accepted definition under a pre-emptive statute complementary to one under an elaborated internationally binding treaty might remedy this issue.


Introduction
When approaching an analysis of a particular area of law, one must initially locate and understand the definition of its core concept. Yet in trade secret law serious obstacles appear in this process. Unlike the other intellectual property (IP) regimes, such as copyright and patent law, the core concepts of which are subject to unitary definitions governed by international treaties or domestic statutes, 1 the trade secret concept has not received a parallel treatment and, until recently in the United States (U.S.), has mainly been defined under common law. 2 The absence of a unitary statutory regime meant that the subject matter and definitional parameters of trade secrets were shaped under the influence of various common law doctrines which generated little certainty as to their scope. 3 A handful of courts in trade secret proceedings appeared to view the lack of a precise definition as a problem, prompting less or almost no hesitation to rely on inconsistent doctrinal policies in determining what comprised a trade secret. Subtle differences in the way trade secrets were judicially conceived often generated conflicts between courts, opening the door for the application of divergent rules on similar points. That is not to say that the lack of a unanimously accepted definition led the courts to apply different rules when deciding remedial or other procedural law aspects, but that the very notion of secrecy saw varying application. 4 Leading trade secret practitioner and commentator Charles T. Graves highlighted the importance of this issue, remarking that: ''to recognize different definitions of secrecy is to acknowledge that the whole regime can serve inconsistent, even conflicting policy objectives … [and the] question of whose interests can be served, and whose will be less favored by choice' '. 5 This blurred backdrop is perhaps unsurprising given the comparatively scant treatment that trade secrets have received in commentaries. 6 The fluid nature of trade secrets was often the reason for U.S. scholars and practitioners to devote little 1 For instance, the U.S. Patent Act 1790 (1 Stat. 109), or the Patent Cooperation Treaty (''PCT'') (1970). 2 For example, in the U.S., the first case where the nature of trade secrets was discussed -Vickery v. Welch, 36 Mass. 523 (1837) -dates back to 1837. Yet it took almost one and a half centuries for the first statutory definitions to be enacted by the states based on the model law -the Uniform Trade Secrets Act (UTSA) published in 1979. 3 IP commentators have observed that while ambiguity and inconsistency in interpreting the definitions for patents or copyrights are also present, they do not resemble the ''indeterminacy'' of trade secret definitional inquiries, see Graves (2011), p. 79. 4 Ibid. 5 Ibid., p. 78. 6 The majority of scholars focus on copyright or patent, and avoid trade secrets, first due to a lack of a unitary statutory regime unlike other IP rights, but also due to a dearth of empirical research given companies' general reticence to disclose details regarding their trade secrets. See Levine and Seaman (2018), p. 121; Almeling et al. (2009), p. 293;Rowe (2017), p. 157. interest to their definition and simply brand them as an ''anomaly '' or ''parasitic part'' of IP law. 7 As a result, the individual U.S. jurisdictions started to gradually orient towards implementing statutory provisions in defining trade secrets. The first initiative was undertaken by the National Conference of Commissioners of Uniform Law (''NCCUL''), which introduced the trade secret definition under the Uniform Trade Secrets Act (''UTSA''). 8 In essence, the UTSA was not designed as a statute but rather as a document which proposed the first uniform law text for individual states to adopt in their legislation. The first federal legislative definition was enacted under the Economic Espionage Act (''EEA'') 9 and was subsequently amended under the Defend Trade Secrets Act (''DTSA''). 10 Despite the fact that U.S. trade secret law has seen several statutory initiatives, the precise meaning and definitional parameters of the trade secret concept remain elusive. It could perhaps even be argued that the statutory initiatives only exacerbated this problem given that the U.S. trade secret regime is currently featured by the parallel application of state and federal laws. The variations in the wording of the definitions and, more specifically, definitional parameters under the current definitional sources create significant challenges for trade secret owners when trying to delineate and protect the scope of their assets against third parties such as contractors, employees, business partners and the like. The multi-tier system also poses significant challenges for judges when trying to navigate a labyrinth of different laws which have parallel application.
This paper probes the existing trade secret definitions applicable in the U.S. via analysis of the divergent sources of law that underscored their formulation from the past until the present and identifies the challenges pertinent to their application in practice. Section 2 focuses on the trade secret definition itself. Its object is not to offer a theory for the definitions promulgated, but to locate the sources where the interested parties might find the references that serve as a basis for a provisional assessment of what qualifies as a trade secret at the state or federal level. At the same time, the analysis aims to outline the ''drawbacks'' in the wording of each definition that prompted their amendment. The analysis commences with the common law definition and the definition under the UTSA to then examine the definition enacted by the EEA, concluding with the analysis of its amendment under the DTSA.
Section 3 focuses more closely on the definitional parameters, such as secrecy, economic value and reasonable efforts to maintain secrecy, and outlines the different interpretations of the definitional parameters as a factor that might impede a party's ability to identify trade secrets in a cross-border context. In terms of the methodology applied below, it follows the pattern applied in Sect. 2. It commences with an analysis of common law, before supplying an overview of the statutory 7 Risch (2007), p. 3. See also Lemley (2011), p. 109: ''trade secrets are a puzzle''. 8 National Conference of Commissioners of Uniform Law (''NCCUL''), Uniform Trade Secrets Act (''UTSA''), published in 1979, amended in 1985. 9 Economic Espionage Act of 1996, 110 Stat 3488. 10 Defend Trade Secrets Act of 2016, Pub L No. 114-153, 130 Stat 376. instruments by way of comparison. This provides a basis for evaluating any differences between the sources of law and also lays down the foundations for drawing a conclusion as to whether they are likely to create challenges for the parties in proving the requirements and subsequently identifying their assets as trade secrets in a cross-border context. This methodological approach was adopted because no aspect pertinent to trade secret law can be explained without a clear initial understanding of what a ''trade secret'' is. That has in turn resulted in the application of a mosaic-like methodology in analyzing the regime as a whole. In defining trade secrets, some of the theories, documents, and statutes that underlined their formulation are mentioned in general in Sect. 2, to which the paper returns, but in greater detail in Sect. 3 when explaining how they underscored the formulation of the definitional parameters. An example is the analysis of the UTSA. According to the methodology outlined above, the analysis of the UTSA trade secret definition is included in Sect. 2, whereas Sect. 3 analyzes the UTSA view on trade secret definitional parameters. Such methodology may seem ''repetitive to the cursory reader [however] was deliberately used to provide a comprehensive and thorough analysis' '. 11 In Sect. 4, the paper refers to the terminological confusion arising out of the not infrequent interchangeable use of ''trade secrets'' and ''know-how'', which surfaces in the case law, commentary and even the UTSA, and further complicates the ability to delineate the scope of the former concept with precision. The findings of this analysis will be utilized in Sect. 5 as a mapping point of the potential differences between these legal sources and: first, to inform whether the current trade secret definition is adequate, or perhaps the existence of the multi-tier system might impede a party's ability to identify trade secrets in a cross-border context; and second, to investigate whether an initiative for pre-emption under the DTSA coupled with a complementary trade secret definition under an internationally binding treaty might be an apt response to remedy this issue.

Locating the Trade Secret Definitional Sources Under U.S. Law
The principles governing U.S. trade secret law including its definition derive from both common law and statutes. The first definitional pillar having a common law prominence are the principles encapsulated under the Restatement (First) of Torts (''Restatement'') promulgated in 1939. 12 Parallel sources for defining trade secrets exist in state trade secret law regimes based on the Uniform Trade Secrets Act 11 Middleton (2001), p. 21. 12 American Law Institute (''ALI''), Restatement (First) of Torts (1939). The activity of the ALI focused on defining a trade secret is not only confined to the First Restatement of Torts. In 1995, ALI published the Restatement (Third) of Unfair Competition, which also included a trade secret definition in § 39. However, given that most US states had -by the time these series of Restatement principles were published -oriented towards statutory regulation of their trade secret regimes based on the UTSA's original text, this made the impact of this instrument on the trade secret law including the trade secret definition insignificant. For this reason, this paper refers to the Restatement (Third) of Torts only by way of reference. published in 1979, currently adopted in 51 states. 13 The enactment of the Economic Espionage Act in 1996, and its recent amendment with the Defend Trade Secrets Act of 2016, established a new definitional pillar, placing the definition and its interpretation within the federal ambit.
One might wonder why the U.S. legislators opted to rely on parallel definitional sources instead of establishing a unitary, i.e. uniform, trade secret definition. The answer to this inquiry could perhaps be found within a broader analysis of the origin and development of U.S. trade secret law against the socio-economic background that affected the formulation of its core principles, including the trade secret definition.

The Concept of Trade Secret Under Common Law
The ''trade secret'' concept was introduced in U.S. legal terminology in the 1800s to refer to and accommodate the protection of the ''new assets'' that emerged in the process of the transition from agrarian to manufacturing production. 14 The novelty of the concept was the reason why in the very first judgments the focus of the judges was not on providing a precise definition for a trade secret, but rather on attempting to ''conceptualize'' its meaning via a description of what the concept consisted of. 15 What appear to be the first dicta in this context emerged from Peabody v. Norfolk in 1868. 16 There, the Supreme Court of Massachusetts held that trade secrets might relate to a relatively novel and ''safeguarded'' process of manufacture that gives its owner some sort of property rights that courts are bound to protect against unauthorized use or disclosure by third parties. 17 Ensuing case law offers what may be described as a mosaic of decisions on what constitutes a trade secret. 18 The lack of a precise and uniformly accepted definition of the concept caused confusion among judges not just in terms of assessing the subject matter but subsequently when applying the rules pertinent to its protection. 13 Most recently, on 1 October 2018, the state of Massachusetts adopted the UTSA's language, see Mass Ann Laws, Ch 93, § 42 (2020). North Carolina's Trade Secrets Protection Act is only partially based on the original version of the UTSA -NC Gen Stat, § § 66-152-66-157 (2020). New York recently introduced its own bill for passage of the UTSA's text, see New York Bill SB 2468. 14 The first court decision related to trade secrets was reached in Vickery v. Welch, 36 Mass. 523, 534 (1837), although no specific definition of a trade secret was given. 15 The same pattern for providing early trade secret definitions is encountered in almost every common law jurisdiction as judges were quite often treating the characteristic of the subject matter that ''has been disclosed together with the manner in which it was disclosed as inseparable aspects of the case before them''. See Turner (1962), p. 11. 16 98 Mass. 452 (1868. 17 More precisely, the Court held that if a person ''[i]nvents or discovers, and keeps secret, a process of manufacture, whether a proper subject for a patent or not, he has not indeed an exclusive right to it as against the public, or against those who in good faith acquire knowledge of it; but he has a property in it, which a court of chancery will protect against one who in violation of contract and breach of confidence undertakes to apply it to his own use, or to disclose it to third persons''. See Peabody v. Norfolk, 98 Mass. 452, 458 (1868). 18 See Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12 (1889);Stone v. Goss, 65 N.J. Eq. 756, 55 A 736 (1903). This confusing backdrop prompted the American Law Institute (''ALI'') to undertake an initiative to ''restate'' the body of trade secret law to bring greater consistency while making the task of defining the trade secret concept a top priority.
The result of the initiative came into effect in 1939 when the ALI published the Restatement (First) of Torts. 19 The Restatement, however, did not introduce a solution to the problem with a trade secret definition. As foreshadowed above, the lack of clarity surrounding a judicial definition impeded the drafters' task in stipulating the primary characteristic of trade secrets. The noticeable reticence existing among them in terms of drafting the definition surfaced in the acknowledgement, appearing in the preface to the Restatement, where they highlighted that providing: ''an exact definition of trade secret is not possible''. 20 The drafters, therefore, offered two solutions to the issue. The first was a list of six factors, which if present might prove the existence of a trade secret. The second was the insertion of a non-formal definition via comment b to § 757 to assist judges in cases where they confront difficulties in reaching a conclusion upon the examination of the six factors. Yet these factors were not intended to operate as an exhaustive checklist. 21 They allowed judges to adopt a case-by-case approach in determining whether a trade secret exists based on: 22 (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
As much as the enumeration of the above criteria provided a template for understanding the meaning of the term ''trade secret'', it was not always conducive to certainty, given that trade secrets vary widely in their nature. For instance, in the vast bulk of cases, the courts did not require that all of the criteria were complied with. In Re Bass, for example, the Court held that: ''[w]e agree with the Restatement and the majority of jurisdictions that the party claiming a trade secret should not be required to satisfy all six factors because they do not fit neatly into each other every 19 Restatement (First) of Torts (1939) (''Restatement''). 20 Restatement, § 757 cmt (b). 21 In the vast bulk of cases, the courts did not require that all of the criteria were complied with. For example, In Re Bass, 113 S.W.3d 735, 740 (Tex. 2003), the Court held that: ''[w]e agree with the Restatement and the majority of jurisdictions that the party claiming a trade secret should not be required to satisfy all six factors because they do not fit neatly into each other every time''. 22 Restatement, § 757 cmt (b). time ''. 23 To address this challenge, as noted above, the drafters inserted what could be termed a descriptive definition in the Restatement: 24 A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business … in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount of other terms of a secret bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operation of business. Generally, it relates to the production of goods, such as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.
This formulation in the Restatement recognized (and protected) as a trade secret: a) any type of business information; 25 b) that is secret; 26 c) is used for business purposes; 27 and d) provides a competitive advantage to its owner. 28 Shortly after its publication, the Restatement gained widespread acceptance and ''became a primary authority by adoption in virtually every reported case''. 29 A study found that the trade secret definition was cited in some 500 cases, 30 including ones where the reliance upon the Restatement was used as the interpretative source of states' statutory definitions. 31 23 113 S.W.3d 735, 740 (Tex. 2003). 24 Ibid. 25 See, e.g., Smith v. Dravo Corp., 203 F.2d 369, 373 (7th Cir. 1953) ''[a]lmost any knowledge or information used in the conduct of one's business may be held by its possessor in secret''. 26 The essential role of this requirement is to indicate that matters of public or general knowledge cannot be protected as trade secrets, Kewanee Oil Co. v. Bicron Corp., 416 US 470, 475 (1974). See also Neil & Spencer Holdings Ltd v. Kleen-Rite Inc, 479 F. Supp. 164, 169 (ED. Mo. 1979); Eaton Corp. v. Appliance Valves Corp., 526 F. Supp. 1172, 1179(N.D. Ind. 1981. 27 The implementation of this criterion divided courts in terms of defining the term ''use''. Some questioned whether there needs to be an actual use or whether information that is not in use can also be defined as a trade secret. For instance, in Harris Mfg. Co. v. Williams, 157 F. Supp. 779, 787 (WD. Ark. 1957), the trial judge found that ''[t]he mere fact that plaintiff is not using the domestic mastic at the present time does not prevent said mastic from being a trade secret''. 28 E.I. Du Pont De Nemours & Co. v. United States, 288 F.2d 904, 911 (Ct. Cl. 1961); EW Bliss Co. v. Struthers-Dunn Inc., 291 F. Supp. 390, 396 (SD. Iowa 1968). 29 Klitzke (1980), p. 282.

The Demise of the Common Law Approach
Despite its wide acceptance, the Restatement's definitional view on trade secrets gradually receded because of its overall failure to deliver consistency of trade secret law. 32 When it came to a trade secret definition, a hurdle to consistency emerged from the fact that the Restatement's principles were non-binding, allowing judges freedom to accept or reject the operational definition and the list of factors, or to apply these factors differentially. 33 This uncertainty escalated to a point where judges were dealing with misappropriation of trade secrets, without attempting to either define the parameters of the trade secret in a specific case 34 or to even determine if it really exists. For example, in Lear Siegler Inc. v. Ark-Ell Springs Inc., the court encountered this difficulty and avoided defining the concept of a trade secret by simply stating ''the term 'trade secret' is one of the most elusive and difficult concepts in the law to define''. 35 Defining trade secrets against these parameters also proved challenging for scholars. In the words of one commentator, the confusion is obvious as the definition of ''[t]he term seems to imply the existence of some sort of property and suggests that trade secrets ought to be definable as such. In fact, this is however but rarely the case''. 36 The challenges for trade secret owners and courts intensified when in 1979 the ALI published the Restatement (Second) of Torts 37 and deleted all provisions relevant to trade secrets. The ALI's rationale for excluding trade secrets from the scope of regulation was that trade secret principles ''have become substantial specialties, in their own right … and largely divorced from their initial grounding in the principle of torts'', 38 and that the regulation of misappropriation under the tort law was ''largely of historical interest''. 39 As a result of this drafters' recommendation, trade secret law ultimately became the subject of independent projects rather than being governed by the Restatements on Torts. 40 Footnote 31 continued decision whether information qualifies as a trade secret or not. Illustrative in this context are: Minuteman Inc. v. Alexander, 434 N.W.2d 773, 778 (1989) Scott, 273 N.E.2d 393, 395 (Ill. 1971), the judge held that ''a definition of the possible objects of trade secrecy is undoubtedly subject to variations and change as the facts of any particular case might dictate''. See also Rowe (2013), p. 15. 35 569 F.2d 286, 288-9 (5th Cir. 1978). 36 Correa (1963), p. 531. 37 ALI, Restatement (Second) of Torts (1979). 38 Ibid., Introductory Note. 39 Ibid. 40 Ibid. The ALI observed that trade secret law ''is no more dependent upon Tort law than it is on many other general fields of the law''.
The failure to address trade secrets explicitly under the Restatement (Second) left judges again with very limited guidance when dealing with the meaning of the concept. 41 The confusing backdrop was a strong indicator that further intervention in the area was inevitable to try to fill the gap and set some uniform guidance in this context. As discussed below this intervention eventuated in 1979.

Defining Trade Secret Under the Uniform Trade Secrets Act (UTSA)
The initiative to overcome the uncertainty surrounding the application of the general principles of trade secret law, including its definition, was taken by the National Conference Commissioners on Uniform State Laws (''NCCUSL''). 42 After more than a decade of substantive work on an initially proposed text in 1968, the Commissioners succeeded in consolidating the scattered principles of common law, along with the findings of the best-reasoned cases, via the Uniform Trade Secrets Act in 1979. The UTSA's text was built upon the common law principles embodied in the Restatement and was structured to recommend a uniform law text for state legislatures to adopt. 43 The primary motivating factor for the UTSA's publication was again ''the perceived need to more precisely define the parameters of trade secrets''. 44 This spawned a broad conceptualization of ''trade secret'', allowing almost any information to be regarded as a trade secret provided it met the mandatory requirements. 45 In the parlance of the UTSA: 46 ''Trade secret'' means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
From a semantic perspective, this definition closely resembled that of the Restatement, 47 which is not surprising knowing that its principles served as a forerunner for the UTSA text. It nonetheless ''demonstrated a reasonable departure'' 48 from the Restatement. For instance, the UTSA replaced the 41 Gettings (2007), p. 429. 42 It should be noted for non-American readers that the NCCUSL (as well as the American Law Institute) has no law-making authority. However, unlike the ALI's Restatements, the NCCUSL's work is proposed for implementation into law by all U.S. states. The states are, however, entitled to enact a version that best fits the local circumstances, or not to adopt it at all. 43  , p. 773. 44 Sandeen and Rowe (2016), p. 47. 45 See Levine and Sandeen (2014), p. 245, outlining that: ''the litany of things that can be trade secrets … is quite broad''. 46 UTSA, § 1(4). This definition reduces ''the inconsistency in case law that naturally flowed from the Restatement (First) of Torts' indeterminate list of trade secrecy factors''. See Sandeen (2005) Restatement's operational definition and list of factors with three prerequisites to guide the courts in determining the existence of a trade secret. As stipulated in § 1(4) these prerequisites targeted the presence of: (1) information; (2) that has an actual or potential independent economic value (deriving from being secret or not generally known); and (3) that is subject to efforts that are reasonable under the circumstances to maintain its secrecy. 49 Also, the list of examples of protectable information ''that the Act borrowed from the Restatement'' 50 was expanded by adding ''program'', ''method'' and ''technique'', and reduced by omitting ''list of customers''. 51 A further divergence was that the UTSA eliminated the requirement that the trade secret be ''in continuous use'' by its owner. 52 This spoke of the Commissioners' intention to protect information that has potential use or value for its owner, but where he or she had not yet had an opportunity or acquired the means to put it into use. 53 At first glance, it might appear that eliminating the ''in continuous use'' criterion extended the protectable subject matter. This is, nevertheless, not an entirely correct conjecture, as a balance in the scope of protectable subject matter under the definition was achieved via the implementation of a new and mandatory requirement for qualification of information as a trade secret -''reasonable efforts'' to maintain its secrecy. 54 Although the UTSA definition was largely welcomed -after all, it offered the states a model to shape their trade secret definition -it did not result in greater consistency in its application. The main hindrance was again the non-binding character of the Act, which offered states an option to either modify the text by implementing their own variations or not to adopt the text at all. 55 Thus although the UTSA has been adopted by 51 states, some 16 different variations among state law definitions have emerged. 56 For instance, some variations appeared in terms of the specification of the definitional parameters. 57 Most states required that the information be not ''generally known'' or ''readily ascertainable'', though Colorado's UTSA, for instance, omits both criteria. 58 Some states, including California, Illinois, and 49 UTSA, § 1(4). Compare with the Restatement (First) of Torts, § 757 cmt (b). 50 Klitzke (1980), p. 286. Restatement, cmt (b). 51 See Dole (2017) 57 The definitional parameters are discussed in greater detail in Sect. 3 of this paper. 58 Colo Rev Stat Ann, § 7-74-102(4) (West 2020): ''trade secret means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value. To be a 'trade secret' the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes''.
Oregon, omitted the requirement for the information to be not ''readily ascertainable'' under their respective laws. 59 Differences remain in regard to the listed forms or types of information that can be considered a trade secret. As noted above, while the UTSA's text has omitted the customer list from the types of information that could be regarded as a trade secret, this was nevertheless explicitly included under the UTSA's texts in Connecticut, Ohio, Oregon, Pennsylvania, and Texas. 60 Alaska's UTSA stands alone in not listing any type of information that can qualify as a trade secret, specifying generally that a trade secret means information that meets the mandatory definitional criteria. 61 These variations spawned a source for a potential conflict in their practical application at an interstate level yet this proved not to be the only challenge. As discussed in the following section, further challenges arose in the applicability of the UTSA definitions given that almost none of them 62 included in their listing the new forms in which trade secrets have become more frequently stored, i.e. electronic form. Eventually, this drawback was addressed in 2016 under amendments that ensued as a part of the new intervention in U.S. trade secret law, now at a federal level.

The Enactment of the EEA
The years following the passage of the UTSA witnessed significant changes for the U.S. businesses dealing with trade secrets. What once was the subject of state commerce gained an interstate or international dimension, and what once was kept as a secret stored on paper was translated into electronic form. 63 Previous definitions were not tailored to encompass the new forms in which trade secrets became frequently stored and thus an amendment was needed. The U.S. Congress filled the breach, first via a criminal statute in the form of the Economic Espionage Act in 1996 and then by amending its text with the Defend Trade Secrets Act in 2016.
The EEA's amendment made it explicit that trade secrets are not restricted to formulas, patterns, or compilations (per the USTA), but also include ''programs and codes, whether tangible or intangible … stored, compiled, or memorialized 59 See Cal Civil Code, § 3426.1(d)(1) (West 2020), a trade secret: ''is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use''; see also [T]he term ''trade secret'' means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public.
This amendment made the EEA's definition broader than its UTSA counterpart. 66 What further extended the definition was the use of the word ''public'' at the conclusion of paragraph (B) of the EEA's original definition. 67 The initial wording of the definition was not without a drawback. The fact that the wording of § 1832 in the original version of the EEA extended only to a product (but not to a service) produced for or placed (not just intended but actually placed) in interstate or foreign commerce created an inability to prosecute a number of cases of theft resulting from a cyber intrusion. 68 The weakness of the wording of this provision surfaced in United States v. Aleynikov. 69 There a prosecution was instigated against the defendant Sergey Aleynikov, who was one of Goldman Sachs' computer programmers working on developing and maintaining source code for the company's high-frequency trading (''HFT'') system. 70 Given the value of the system, the company treated all of its components, including the ones developed by Aleynikov, as highly confidential. 71 To safeguard its secrecy Goldman Sachs' officials required all employees to sign a confidentiality agreement that barred them from disclosure while employed by the company and also from taking or using the information after their employment 64 18 USC § 1839(3) (1996) prior to the amendments in 2016 under the DTSA. 65 18 USC § 1839(3) (1996). 66 Compare 18 USC § 1839(3) with UTSA, § 1(4). See also United States v. Hsu, 155 F.3d 189, 196 (3d Cir. 1998), where it was remarked that the ''EEA protects a wider variety of technological and intangible information than current civil laws''. 67 Compare the foregoing EEA definition with the UTSA definition in § 1(4) which states that: ''[t]rade secret means information … that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and maintain its secrecy'' (emphasis added). 70 Aleynikov 2010, 174. 71 Ibid., 175, ''Goldman has not licensed its Trading System or made it or its components available to the public, and has taken measures to protect the Trading System's source code … limits access to the Trading System's source code only to Goldman employees who have reason to access that source code, such as the programmers working on the Trading System''.
ceased. 72 Breach of this agreement triggered an indictment against Aleynikov in 2009 when he resigned from Goldman Sachs to accept a position at the competing start-up venture Teza. 73 Aleynikov was offered a vice-presidential position which required him to develop an HFT system that would allow Teza to compete with Goldman Sachs. 74 Aleynikov accepted the offer and, as the court noted, on his last day copied a huge amount of data from Goldman Sachs' source code. 75 The court found that Aleynikov uploaded this data on a German server and covered his actions by deleting the encryption key. 76 He then downloaded the same data to his home computer. 77 Goldman Sachs' security team members became aware of Aleynikov's activities and reported him to the officials who arrested him in Chicago after he flew back from Germany where he attended a meeting with Teza. 78 The officials also found that the flash drive that Aleynikov was carrying with him, contained some of Goldman Sachs' source code lines. These were also found when searching Aleynikov's own computer. 79 The indictment against Aleynikov was based on three counts: violation of the EEA -theft of a trade secret, 80 violation of the National Stolen Property Act (''NSPA'') -transportation of stolen goods, wares and merchandise in interstate commerce; 81 and violation of the Computer Fraud Act (''CFA'') -unauthorized and exceeding authorized computer access. 82 Aleynikov filed a motion to dismiss the charges, arguing that source code for the HFT system, i.e. Goldman Sachs' trade secret, was not a product produced or placed in interstate commerce, 83 nor represented goods, wares and merchandises. 84 The court dismissed this motion, ruling that the high frequency platform allows trading interstate and could therefore be seen as being able to be ''placed'' interstate. 85 Aleynikov subsequently appealed the judgment. In adjudicating on the matter, the appellate court reversed the judgment, 86 determining that the ''HFT system was not designed to enter or pass in 72 Ibid.
73 Aleynikov 2010, 174. 74 Ibid., 175. 75 Ibid., ''Copied, compressed, encrypted, and transferred to an outside server in Germany''. 76 Ibid.  Ibid.,190. 86 Aleynikov 2012, 71, 80. In terms of the EEA violation, the appellate court stated that ''the district court erred by construing the phrase -'produced for ... interstate or foreign commerce' -'in a vacuum'''. commerce, [thus] Aleynikov's theft of source code relating to that system was not an offense under the EEA''. 87 This outcome generated an immediate response from Congress, which enacted the Theft of Trade Secrets Clarification Act in 2012. 88 The Act modified and expanded § 1832(a) by replacing (striking) the previous wording ''a product that is produced for or placed in'' with ''product or service that is used or intended for use in interstate or foreign commerce''. 89 2.4.2 The Enactment of the DTSA These differences gained attention when, in 2016, Congress amended the EEA with the enactment of the DTSA. The DTSA was intended to ''modernize'' the civil law aspects of trade secret law by introducing a federal civil cause of action and extending its application extraterritorially. 90 Although the UTSA's state-based laws already provided a civil cause of action against trade secret misappropriation, their ''non-uniform'' application spawned conflicting results when applied in practice at an interstate level. The growing concern regarding the disjointed and ''nonuniform'' application arising out of the differences between state laws as to what constitutes a trade secret, the requirements in proving misappropriation, and procedural aspects was not lost on legislators, academics and practitioners. For instance, in one of its reports 91 the U.S. Senate acknowledged that the impact of differences in application between the UTSA's versions with respect to the trade secret definition ''can prove case-dispositive'', and as such: 92 [T]hey may affect which party has the burden of establishing that a trade secret is not readily ascertainable, whether the owner has any rights against a party that innocently acquires a trade secret, the scope of information protectable as a trade secret, and what measures are necessary to satisfy the requirement that the owner employ ''reasonable measures'' to maintain secrecy.
Academics were perhaps the most vocal critics of the then current trade secret regime. 93 The leading U.S. commentator James Pooley branded variations in the 87 ''Because the HFT system was not designed to enter or pass in commerce, or to make something that does, Aleynikov's theft of source code relating to that system was not an offense under the EEA'',  S Rep No. 114-220, 2d Sess (7 March 2016). For example, the non-uniform application could cause lengthy delays in proceedings where the parties seek a deposition of witnesses situated in different states. In such circumstances, the process of obtaining the statement will usually require several court orders in different jurisdictions and can thus lead to unnecessary delays. 93 See, e.g., Pace (1995), pp. 442-4; Lao (1998Lao ( ), pp. 1661Almeling (2009), pp. 773-4. application of the trade secret law as ''too numerous to mention'', 94 prompting him to label the Uniform Trade Secrets Act as a non-uniform rather than a uniform law. 95 He went so far as to surmise that the UTSA spawned greater confusion than before its enactment. 96 It has been suggested that the lack of uniformity in this regard, when translated into practice, has conspired to increase the risk of trade secret misappropriation, to make its litigation time-consuming 97 and resourceintensive, 98 and perhaps most notably to reduce the incentive for innovation.
Aside from non-uniform application, the state-focused regime suffered from an inability to provide relief when trade secrets were removed to another jurisdiction. The only set of provisions with extraterritorial applicability available under the EEA were of limited utility as they dealt chiefly with the criminal aspects of the misappropriation. 99 This ran counter to the interests of trade secret owners, whose primary goal was not to seek ''punishment'' of the misappropriator but to prevent the use or disclosure of, or to recover, the trade secret. 100 It was against this background that U.S. legislative bodies initiated a federalization of the civil aspects of trade secret law. 101 The goal was, a commentator has remarked, to create ''narrowly drawn federal legislation for trade secret misappropriation that provides clear rules and predictability, the ability for victims to move quickly to protect their trade secrets before dissemination''. 102 By the same token, the newly introduced federal legislation was intended, though its wording lacks clarity, to have extraterritorial reach. Extending the Act's applicability beyond the U.S. jurisdictional lines aimed to provide a mechanism to respond more effectively to the challenges trade secret owners were facing in a modern global society such as, for instance, the actions of rogue employees and cyber espionage falling outside the reach of state law. However, the challenges pertinent to the lack of uniformity of a 94 Pooley (2016) Ibid.,§ 2.03[7], note the author's reference to the Uniform Trade Secret Act as ''non-Uniform Act''. 97 The existing law is particularly inadequate for initiating a trade secret misappropriation lawsuit by small and new businesses knowing that the litigation process is time and resource-consuming, which is something that they cannot always withstand, see Beauchamp (2017), p. 1052. 98 Levine and Sandeen (2014), p. 243. 99 Namely, § 1836 of the EEA empowered the US Attorney General to seek, in a civil action, ''appropriate injunctive relief in response to a violation of the EEA''. Yet the legislative history proved no such example, see Carr et al. (2000), p. 177. 100 Namely, according to the general principle in federal proceedings, the fines and forfeitures are payable to the government. That, in turn, confined the possibility of the misappropriated party to seek a compensatory remedy only upon a petition to the ''government for restitution based on the proceeds from the sale of property forfeited under § 1834 of the EEA''. See Simon (1998) trade secret definition were not resolved given that, as discussed below, the DTSA's definition was again different from the definitions introduced under the UTSA and EEA.
To avoid conflict in the interpretation of the state and federal law definitions, the drafters attempted to resolve those aspects that might be a source of ambiguity. As to the problem of the EEA's definition being broader than the UTSA, the solution was to replace the term ''public'' at the end of paragraph (B) with the phrase ''another person who can obtain economic value from the disclosure or use of information'', which wording derived from the UTSA definition. In its current form, the DTSA definition stipulates: 103 [T]he term ''trade secret'' means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if -(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
Even after the amendments, the federal ''trade secret'' definition remains broader than its UTSA counterpart. But that is not necessarily the case when the former definition is compared to state-specific definitions. As noted above, some statebased laws, for instance, the California Uniform Trade Secrets Act's (CUTSA) definition, are broader than the DTSA, in omitting the requirement that the trade secret ''not be readily ascertainable''. 104 The challenges that the existence of parallel regimes might create in practice were recognized by both lawyers and academics, 105 who have advocated for amendment of the DTSA to enable its pre-emption over the state law. After all, the lack of pre-emption requires trade secret owners to comply with both state and federal laws, adding inconvenience and cost. 106 Lack of pre-emption could also function negatively on the choice of law: the opportunity for plaintiffs to file both federal and state trade secret claims increases, and indeed incentivizes, the prospect of forum shopping. 107 A non-pre-emptive statute is, in any event, hardly an avenue to foster a ''uniform and predictable jurisprudence''. 108 It has been suggested that the non-pre-emptive character and absence of federal precedents will ultimately turn the courts towards interpreting the DTSA ''through the lens of pre-existing UTSA precedents'' 109 rather than in accordance with the statutory language construed in line with the purpose of the Act. Any practice where courts rely too heavily on stateenacted UTSA versions could thereby spawn ''discrepancies at the federal level''. 110 One might wonder why pre-emption was not supported by lawmakers in the first place. According to the U.S. trade secret scholar and practitioner James Pooley, Congress saw pre-emption as a ''nonstarter'' because its message would have been that Congress dictates ''to the states what to do''. 111 That would have required the states to adhere to or adjust their laws to the new federal law provisions. By 2015, most U.S. states had already enacted trade secret statutes and well-developed jurisprudence based on their application which could potentially contain solutions conflicting with the one under the proposed statute. The same would have necessitated lengthy negotiations when drafting the DTSA text causing unnecessary delay in enacting the urgently needed Act. Since the pre-emption avenue was exhausted, the alternative that eventuated was that the DTSA added ''another layer of protection'' 112 over the existing regimes. Congressional leaders hoped that this might, if not completely unify the law, to some extent pave the way towards greater predictability of the law for businesses operating both nationally and internationally. Yet it remains unclear whether or how Congress's expectations will be met when the courts apply the law in practice. Generally speaking, the non-pre-emptive character of the DTSA has made this intervention a ''non-perfect'' solution to a perfectly known problem.

Trade Secret Definition -Remaining Challenges
The preceding overview revealed some of the challenges that the U.S. judiciary, regulative and legislative bodies faced in the process of framing the definition for the concept of a trade secret. The Aleynikov case perhaps best illustrates how the abstract and highly factual nature of trade secrets impedes lawmakers' ability to precisely draft provisions pertinent to their definition and how some nuances in which the provisions are interpreted can prevent the courts from applying the law and lead towards detrimental consequences for trade secret owners. While the U.S. regulative and legislative bodies were reactive to the need to adapt trade secret definitions to modern needs, it appears that to date this has not resolved the definitional issues entirely. The fact that the DTSA is not pre-emptive means that now there are two core ''trade secret'' definitions in the U.S., the DTSA and the UTSA, which can conflict given the varying application of the UTSA's definitions and the unpredictability of the law that might apply in cases. 109 Ruelle (2017)

Trade Secret Definitional Parameters
The analysis in Sect. 2 elucidates a conclusion, which all definitional sources under the UTSA, EEA and DTSA articulated, that the trade secret subject matter, or more precisely the information, must fulfil certain criteria to be given such legal status. By setting the definitional criteria, the law aims to filter out or distinguish trade secrets from other subsets of information that fall outside this category. Such subsets include information of a confidential character of a governmental or private nature; information related to the general skill and knowledge of an employee; and information that has no confidential character by reason of being trivial or publicly known.
The preliminary inquiry into the matter illustrates that despite some variations in terminology, and the extent of their application, three criteria are common across the U.S. trade secret definitional sources in distinguishing information as trade secrets amenable to legal protection. The state and federal laws attach trade secret status to information that is secret, has some economic value because of its secrecy and is subject to reasonable efforts or precautious by its ''owner'' to preserve its secrecy.
The ''known'' nature of the parameters, however, does not make the process of their application in practice immune to difficulties. One of the difficulties stems from the fact that all trade secret definitional sources list the foregoing criteria as mandatory but without guidance on how they should be applied in practice. Practical application instead rests on judicial references and scholarly comments, which can prove challenging. For instance, judges not infrequently subsume the analysis of one requirement under another, making it difficult to distinguish how and to what extent the requirements have been evaluated and applied in each case.
The initial point for analysis is the secrecy requirement. After all, information that is not secret but a matter of general knowledge is unlikely in any case to have special economic value or to be a subject of reasonable efforts for protection by its owner. 113

Secrecy
Trade secret definitional sources are united on the point that secrecy is a mandatory criterion for qualifying information as a trade secret. In spite of this commonly accepted stance, and as discussed in greater detail in the following sections, U.S. laws exhibit some differences in terms of how the secrecy requirement is applied in practice.
The inquiry as to whether the information is sufficiently secret to qualify as a trade secret under U.S. trade secret law requires analysis of two discrete criteria. The first is whether the information is ''generally known'', and the second whether the information is ''readily ascertainable''. 114 The specific wording and recognition of each requirement received judicial imprimatur in Kewanee Oil Co. v Corp., 115 where the U.S. Supreme Court noted that: ''[t]he subject of a trade secret must be secret, and must not be of public knowledge, or a general knowledge in the trade or business''. 116 This in turn translated to the ''trade secret'' definitions in the UTSA, EEA and DTSA. 117 The ensuing subsections illustrate the way these legal sources assist U.S. judges in the process of the assertion of the above requirements on the merits of each case.

Inquiry into ''Not Generally Known''
As foreshadowed above, the language of both the UTSA and the DTSA characterize as trade secrets any information that: ''(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use''. 118 Even though the requirement that information needs to ''not be generally known'' is an integral part of the statutory definition of these instruments, no specific parameters against which this criterion can be evaluated are supplied. Some guidance as to what is ''not generally known'' is, however, contained in the comments to the UTSA original text, where the Commissioners specified the scope and the breadth of the criteria as follows: 119 The language ''not being generally known'' … by other persons does not require that information be generally known to the public for trade secret rights to be lost. If the principal persons who can obtain economic benefit from information are aware of it, there is no trade secret. A method of casting metal, for example, may be unknown to the general public but readily known within the foundry industry.
The wording of the above comment indicates that the secrecy requirement has a relative, not an absolute, dimension. This stems from the fact that its evaluation targets the knowledge of persons who might benefit from the information, that being knowledge confined within a specific industry, not the public in general. It is only by comparison of these two variables -the knowledge of a person who might benefit from its use and knowledge in a field of industry -that one can determine that the trade secret owners' information is ''not generally known''. 120 This fact-dependent inquiry resembles the process of ''prior art'' applicable in patent law. 121 But when translated into the domain of trade secret law, the inquiry has a narrower scope, because the plaintiff does not need to prove that the trade 115  secret is absolutely novel as is the case with a patent. 122 There is nonetheless a requirement imposed on the plaintiff to demonstrate that there is ''something at least modestly 'special' about the information -the law will not intervene to protect matter that is only trivially different from known art''. 123 The fact that the information has been disclosed to a certain group of people in confidence does not mean that it has become ''generally known'', since limited disclosure may not per se destroy secrecy. 124

Inquiry into ''Readily Ascertainable''
A further step in evaluating whether the information is, in fact, secret is to see if it is ''readily ascertainable''. Again, in answering the question, some illustrative guidance can be found in the UTSA's commentary, rather than in its text, which specifies that: 125 Information is ''readily ascertainable'' if it is available in trade journals, reference books, or published materials. Often, the nature of a product lends itself to being readily copied as soon as it is available on the market. On the other hand, if reverse engineering is lengthy and expensive, a person who discovers the trade secret through reverse engineering can have a trade secret in the information obtained from reverse engineering.
It appears that evaluating this criterion, as well as the phrase ''not generally known'', rests on circumstantial evidence. Unlike the previous inquiry, which assessed whether the information is knowledge of an industry and among persons who might benefit from its use, the inquiry here is to determine ''the ease with which a trade secret could have been independently discovered''. 126 122 This is one of the reasons why some judicial opinions refer to this requirement as novelty rather than secrecy. The issue was addressed in the Restatement (Third) of Unfair Competition (1995), § 39 cmt (f): ''although trade secrets cases sometimes announce a novelty requirement, the requirement is synonymous with the concepts of secrecy and value as described in this Section and the correlative exclusion of selfevident variants of the known art''. See also Sims v. Mack Truck Corp., 488 F. Supp. 592, 598 (E.D. Pa. 1980) ''[t]rade secret must be in some sense novel, although it need not approach the degree of novelty required under the patent laws''. 123 Co. v. Bicron Corp., 416 US 470, 475 (1974). The court found that secrecy will not be lost: ''if the holder of the trade secret reveals the trade secret to another in confidence, and under an implied obligation not to use or disclose it'' (references omitted); ''Disclosure to the … association's director did not result in general publication '', Clark v. Bunker, 453 F.2d 1006, 1010(9th Cir. 1972. 125 See UTSA, § 1 cmt. Judicial references have couched the evaluation of ''not readily ascertainable'' by examining various factors. In some instances, their query targeted whether the duplication or acquisition of the information presupposes a substantial investment of time and resources. 127 On other occasions, the courts linked the willingness of others to pay for the information as a proxy for not being ''readily ascertainable''. 128 Finally, the mere fact that the defendant used ''improper means'' to obtain the information could substantiate that it is ''not readily ascertainable''. 129 Despite judicial guidance, commentators find the borderline between ''not generally known'' and ''readily ascertainable'' indistinct, 130 because courts often subsume the ''readily ascertainable'' query into that of ''not generally known''. This judicial trend may have contributed to some U.S. states omitting the ''readily ascertainable'' criterion from their statutory definition, limiting the inquiry into whether the trade secret is secret to investigate if it is ''not generally known''. 131 At the time when the EEA was enacted in 1996, the secrecy criterion was given a broader scope than that prescribed under the UTSA which required that the information is ''not generally known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use''. 132 Conversely, under the EEA, the trade secret owner needed to prove that their trade secret is ''not generally known'' or ''readily ascertainable'' by the public, 133 meaning that the formulation of the criterion extended to an absolute and not a relative dimension. The scope of the criterion, however, became a subject of ''modification'' in 2016 when the DTSA was enacted. As foreshadowed above, the fact that the DTSA intended to bring conformity between the federal (EEA) and state law (UTSA) led inter alia to intervention in relation to the definition of trade secrets that particularly affected the wording of this criterion. That the DTSA's amendments advanced the UTSA's definitional view on the secrecy criterionresulting in its specification at a relative level -means that under the former Act the information can qualify as secret if it is not ''generally known'' or ''readily ascertainable'' by a person who might benefit from its use. 134

Economic Value
The U.S. trade secret definitional sources require that the information derive economic value out of its secrecy in order to be recognized as a trade secret. This is hardly surprising because secret information in the commercial sphere, as distinct from personal and governmental information, matters in law as long as it has some economic value. 135 The economic value requirement is incorporated in the definitions under the UTSA, EEA and DTSA. They all profess that a trade secret presumes information, that: ''(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use''. 136 There is nonetheless no definitional guidance specifying what criteria might give an actual or potential economic value to information, or the proof that the plaintiff needs to provide so that the value might be estimated. Again, in the absence of statutory guidance, a logical step is to turn to judicial and scholarly observation.

Inquiry into Actual or Potential Value of the Information
The language of both the UTSA and the DTSA specifies that the value of the secret information might be actual or potential. 137 This requirement was initially incorporated into the UTSA text not to serve as a definitional ''accessory'' but to assist in overcoming some of the issues arising from litigation based on the application of the similar definitional requirement prescribed under the Restatement (First) of Torts. 138 The fact that the Restatement defined ''trade secret'' as information that derives its economic value by being in continuous use omitted information with a single use and information that has not yet been commercialized. 139 The UTSA's drafters sought to overcome this ''drawback'' by ignoring the foregoing formulation and allowing for information that has actual or potential 134 Emphasis added. Compare UTSA, § 1(4)(i) with the EEA's definition in 18 USC § 1839(3) (1996) and its amendments under the DTSA in 2016. 135  value to qualify as a trade secret. 140 Its wording allowed for single-use information, as well as information yet to be commercialized, 141 to meet the requirement of having economic value and thus to qualify as a trade secret.
At the same time, both the UTSA and the DTSA definitions are sufficiently elastic to include negative information -i.e. information indicating, for instance, that something does not work -as economically valuable. 142 Yet some division of judicial opinions has surfaced in this regard. 143 While most courts protect some negative information as economically valuable under the theory that knowing what does not work could help a competitor to avoid mistakes, 144 others disagree. 145 The prevailing view, however, is that such information derives independent economic value ''if the disclosure of what does not work leads a competitor to what does work or shortens the owner's lead time advantage in the marketplace, such information will usually be protected''. 146

Proof of Economic Value
The USTA and the DTSA's texts do not specify any precise quantum in terms of the economic value that information must possess or the type of proof that is needed for information to be deemed economically valuable. The lack of further guidance on these parameters mandates judicial resolution in the case of a dispute. 147 Over the years, the judicial decisions have given significance to various circumstantial factors to demonstrate economic value. One approach to proving and demonstrating value 140 See UTSA, § 1(4)(i). 141 Olson v. Nieman's Ltd, 579 N.W.2d 299, 314 (Iowa 1998), the value of information not yet commercialized derived from the potential business opportunities that the plaintiff had provided that ''this idea remained secret' ';in Learning Curve Toys Inc. v. Play Wood Toys Inc., 342 F.3d 714, 716-20 (7th Cir. 2003), the jury reached a verdict in favor of a toy designer against a toy manufacturer with respect to misappropriation of the plaintiff's design for a noise-producing toy train track (trade secret) even though the plaintiff had not actually used it in the manufacture or spent much time developing it. 142 See UTSA, § 1 cmt, ''[t]he definition of 'trade secret' … includes information that has commercial value from a negative viewpoint, for example the results of lengthy and expensive research which proves that a certain process will not work could be of great value to a competitor''. 143 Quinto et al. (2019), p. 10, § 1.03 [3]. 144 See John-Manville Corp. v. Guardian Indus Corp., 586 F. Supp. 1034, 1074(E.D. Mich. 1983). The court found as protectable: ''the competitive edge a competitor gains by avoiding the developer's blind alleys''. 145 Winston Research Corp. v. Minnesota Min. & Mfg. Co., 350 F.2d 134, 143-4 (9th Cir. 1965 , established a five-factor test for the evaluation of whether the information has independent economic value or not. The factors probe: ''first, the value of the information to the competitors; second, the amount of effort or money the plaintiff expended in developing the information; third, the extent of measures the plaintiff took to guard the secrecy of the information; fourth, the ease or difficulty with which others could properly acquire or duplicate the information; and the degree to which third parties have placed the information in the public domain or rendered the information 'readily ascertainable' through patent applications or unrestricted product marketing''. is linked to investment in research and development of new information. 148 That is not to say that the plaintiff must show an enormous investment in research tools as, on occasion, economic value can derive from the use of obvious means or an accidental discovery. 149 Conversely, an immense investment in research and development is not per se proof of the economic value of the obtained information to qualify it as a trade secret. 150 Some judicial decisions illustrate that the value of the information need not be purely economic; it does need, though, to substantiate some ''real advantage''. 151 Illustrative guidance in this context can be found in Religious Tech Center v Netcom On-Line Comm. 152 In adjudicating upon the case, the court held that religious texts (which one would presume do not serve as a source that derives economic value) derived economic value because they significantly affected the Church's donations being one of the sources that funded its operating expenses. 153 Finally, in some cases courts have affirmed that (mis)use by competitors suffices as proof of economic value of the information alleged to be a trade secret. 154

''Reasonable Efforts'' to Maintain Secrecy
The final threshold requirement imposed by the law on a plaintiff who seeks legal recognition of information as a trade secret is to show that he or she made ''reasonable efforts'' to maintain the secret character of their information. This requirement appears to be not just legally but also morally necessary since the trade secret owner ''cannot require other people to exercise secrecy which he does not observe himself''. 155 In the U.S. the answer to the query of what qualifies as ''reasonable efforts'' to maintain secrecy has been closely dependent on the principles that governed the U.S. trade secret regime at the time the grounds for a cause of action against the alleged act of misappropriation arose. While early cases reflected judicial tendencies to evaluate the criterion against the dominant common law doctrine at the time -the 148 Pooley (Release 38), p. 4-53, § 4.05[2]. 149 ''The mere fact that the means by which a discovery is made are obvious … cannot destroy the value of the discovery to one who makes it'', AO Smith Corporation v. Petroleum Iron Works Co., 73 F.2d. 531, 538-9 (6th Cir. 1934). 150 National Rejectors Inc v. Trieman, 409 SW.2d 1, 20 (Mo. 1966): ''the amount of effort or money expended in developing information is a matter to be considered in determining whether it is a trade secret, that element alone cannot convert otherwise obvious shapes and forms, positions and relationships and materials into trade secrets''. See also Pooley (Release 38), p. 4-51, § 4.05[1]. 151 Imperial Chem Indus Ltd. v. Nat'l Distillers & Chem Corp, 342 F.2d 737, 742 (2d Cir. 1965). 152 923 F. Supp. 1231(N.D. Cal. 1995. 153 The plaintiff noted that the defendant's misuse of confidential information of the documents will affect the economic value that derives from the documents in question given that, among others, ''if people read those documents they're not supposed to, and if that affects them from ever doing the service, stops them from doing the service, obviously they won't make donations to the church which will directly affect RTC economically'', see Religious Tech. Center v. Netcom On-Line Comm., 923 F. Supp. 1231, 1253, 1262(N.D. Cal. 1995. 154 See Trandes Corp. v. Guy F Atkinson Co., 996 F.2d 665, 663 (4th Cir. 1993). 155 Dessemontet (1976), pp. 137-38. See Lowndes Prod, Inc. v. Brower, 191 S.E.2d 761, 765 (1972 property theory or the theory of unfair competition -contemporary application of the criterion finds a statutory basis. 156 That common law doctrines and statutes rely on different legal grounds when providing protection against misappropriation explains why, as discussed below, diverse measures have to be taken by the plaintiff to demonstrate ''reasonable efforts'' in maintaining the secret character of the information.

''Reasonable Efforts'' and Common Law
The earliest period in the application of the ''reasonable efforts'' criterion as part of trade secrecy date from the late nineteenth and early twentieth century . This was an era characterized by the dominance of the property theory. The core concept in protecting trade secrets under this theory resided in the exclusivity of the rights in possessing valuable information. This, in turn, signaled to others not to use the information without the owner's permission. 157 The owner was then required to adduce evidence of the measures taken to physically secure their information from competitors in order to qualify for protection as a trade secret. 158 The generally adopted position was that the owner ''who took no special precautions to preserve the secrecy in its information failed to exercise control or dominion over that information and therefore did not possess it''. 159 The property theory proved an inapt avenue to protect the interests of trade secret owners, leading towards gradual acceptance of the unfair competition theory. That, as a consequence, changed the way in which judges viewed the plaintiff's efforts to maintain the secret character of the information. Under the emerging theory, judges no longer focused on possession of property but instead they grounded liability on an examination of ''(t)he behaviour of the alleged abuser of trade secrets, and whether it fell below some standard, or was illegal or in breach of the obligation inherent in a confidential relationship''. 160 Against this backdrop, it was no longer necessary for the plaintiff to demonstrate physical measures for protecting the property, but rather to provide evidence that the information was secret and that the defendant misappropriated it in a manner contrary to commercial ethics. The doctrinal application of the unfair competition theory straddled the period from the 1920s to 1979, when the UTSA's publication, as discussed below, again impacted the way in which this criterion was applied in practice. 156 See USTA statutory definitions enacted by the states and the 18 USC § 1839(3)(A) (DTSA). 157 See Bone (2011), p. 49. 158 van Caenegem (2014), p. 70. 159 Bone (2011), p. 51. The court dismissed the request for an injunction against the defendant against use of an alleged trade secret related to a specific type of machine on the basis that ''the plaintiff failed to guard the point machine as a trade secret with reasonable care … and relied more upon the improbability that anybody would care to copy the point machine and enter into competition with them in the business of making diamond-shaped glazier's points than upon a close guarding of the point machine as a trade secret '', McClary v. Hubbard, 122 A 469 228, 231-2 (Vt. 1923). 160 van Caenegem (2014), p. 70.

''Reasonable Efforts'' and the UTSA
The most important event for the legal recognition of ''reasonable efforts'' as a distinct requirement for qualifying information as a trade secret was its ''incorporation'' into the UTSA's text. According to the UTSA, trade secret presumes information that ''(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy''. 161 The explicit formulation of this criterion, however, did not eliminate the problems surrounding its practical application, as the UTSA gave no further guidance in its official text on how it should be evaluated in practice. The Commissioners, however, included some illustrative guidance in the commentary section of the UTSA by stating that: 162 ''Reasonable efforts'' to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on ''need to know basis'', and controlling plant access. On the other hand, public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection. The efforts required to maintain secrecy are those ''reasonable under the circumstances''.
The requirement of efforts that are ''reasonable under the circumstances'' suggested that the standard for their evaluation is flexible. 163 Case authority indicates that the efforts taken need to be reasonable but not ''heroic''. 164 The UTSA's commentary also supports this premise, specifying that it is not required ''that extreme and unduly expensive procedures be taken to protect trade secrets against flagrant industrial espionage''; 165 rather, it suffices to give employees notice that the information is a trade secret.
Courts have since qualified various types of security measures as ''reasonable under the circumstances''. Non-disclosure agreements are usually the most common and compelling form for demonstrating efforts to maintain secrecy. Other measures include labelling or cataloguing information as confidential or proprietary; 166 securing and controlling the access of the location or the parties where the 161 UTSA, § 1(4)(ii). 162 See UTSA, § 1 cmt. 163 See Niemi v. NHK Spring Co. Ltd., 543 F.3d 294, 301 (6th Cir., 2008) ''[w]hether efforts taken to maintain the secrecy of a trade secret are reasonable under the circumstances depends on the circumstances; that what is reasonable for a small company may be different from what is reasonable for a large company''. 164 See USM Corp. v. Marson Fastener Corp., 393 N.E.2d 895, 902 (Mass. 1979) ''[w]e do not require the possessor of a trade secret to take heroic measures to preserve its secrecy''. 165 See UTSA, § 1 cmt, referring to E.I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012(5th Cir. 1970). 166 O2 Micro Int'l, Ltd. v. Monolithic Power Sys, Inc., 420 F. Supp.2d 1070, 1091-2 (N.D. Cal 2006. The datasheet which the plaintiff had sent to the defendant contained trade secret information. To that end it had a visible stamp across every page requiring it to be kept as confidential, an outcome which did not eventuate. information is stored, in physical form; 167 or implementing electronic security measures to accessing Information Technology (IT) servers. 168 Given the flexible nature of this criterion, it is no surprise that courts do not always apply it consistently. By way of illustration, in Superchips Inc., v. Street & Performance Electronics Inc, 169 the court considered the combination of code encryption and integrated password protection of the system limited to an authorized group of people as sufficient evidence of ''reasonable efforts''. But in Progressive Prod Inc., v. Swartz, 170 the court found that verbal instructions to employees not to disclose the ingredients of a specific formula to the public, and to cover up its ingredients when outsiders visited the plant, sufficed to prove ''reasonable efforts'' to maintain secrecy.

Definitional Parameters -Remaining Challenges
The above analysis focused on investigating the requirements that the law imposes if the information is to qualify as a trade secret. With some variations in the terminology, and the degree to which it needs to be applied, each of the catalogued definitions requires: i) that the information is secret, ii) has some economic value, and iii) ''reasonable efforts'' are implemented to ensure secrecy.
Challenges in this context remain, however, as the lack of a clear statute-like prescription leaves judges to make ad hoc determinations for their application on the merits of each case. It is therefore not surprising that the case law exhibits significant variations. For instance, courts assign different values to the factors that might be included in an assessment as to whether the information is secret or not. The judicial dicta are also not united on what type of efforts are needed to preserve the secret character of the information. That causes challenges, not only for judges faced with a need to make a decision but also for the trade secret owners. As to the latter, the divergent judicial references create confusion when attempting to make provisional assessments as to whether or not their assets can qualify as trade secrets. It is unclear, for instance, whether signed non-disclosure agreements are required or whether verbally given instructions will suffice to prove that reasonable efforts for maintaining secrecy have been made. The problem is exacerbated since those variations exist not just within jurisdictions but even more so in cross-border contexts. Before entering into an agreement to transfer their rights the parties lack certainty if the law they have prescribed will necessarily apply in that case or perhaps the rules regarding conflict of laws will prevail and subsequently attract an application of a different law. Should that be the case, the contracting parties might face a scenario where the asset that they have transferred will not qualify as a trade secret under the law.

Special Issue of Terminological Confusion Between Trade Secrets and ''Know-How''
What brought further scope for confusion in conceptualizing the trade secret definition was that its notion became conflated with that of a concept being developed in parallel, similar in nature, but under the terminology of ''know-how''. The confusion stemmed from the fact that know-how was frequently employed within commercial, technical and legal circles to designate a subject matter paralleling trade secrets but at the same time without an accepted legal meaning. 171 Discussing the meaning of ''know-how'' is important given that at present the concept has been found to have a dual meaning: the one already mentioned, that aligns its scope with the concept of trade secret, and another used to designate the personal skills of an employee. Only the former category of know-how is protected under trade secret law. ''Know-how'' as ''personal skills'' designates knowledge that employees are free to use in the course of their subsequent employment. It is thus important to address how this concept originated, and how it developed a relationship with the concept of trade secrecy.

Trade Secret vs. Know-How
In U.S. legal terminology, the expression ' 'know-how'' first appeared in 1916. 172 Thereafter the term became quite popular and was frequently employed in the literature and jurisprudence yet it was ''seldom precisely defined''. 173 It appears that within U.S. law there was always a tendency to regard know-how as an ''unruly concept''. 174 What has perhaps contributed towards this ''unruliness'' is that case law references that address know-how vary in context, thus generating little in the way of unanimity between scholars on this point. 175 171 Wise (Release 4),Vol. 1,§ 3.02[4]. 172 The first decision that acknowledged the concept even though not under the precise expression is Durand v. Brown, where the know-how relates to the knowledge of how to conduct the specific process of manufacturing, Durand v. Brown, 236 F 609, 614-15 (6th Cir. 1916). 173 Hawkland (1970), p. 119. 174 Ibid., (footnote omitted). 175 Dessemontet (1976), p. 15. Analyses of the definitional references that surface in the literature, jurisprudence and regulative instruments nonetheless exhibit some commonalities. First, they refer to know-how as a concept equal or similar to trade secrets, although consensus regarding the characteristics of the former concept remains elusive. 176 Second, they focus on defining know-how as a matter of corporate knowledge rather than manual skills. 177

Trade Secret Equals Know-How?
Various U.S. scholars conflate know-how with trade secrets. Rudolf Callmann, for example, simply suggests that ''the definition which is recognized for trade secrets is equally applicable to know-how''. 178 Professor William D. Hawkland addressed this issue in a similar manner. In a report on the protection of know-how under U.S. law delivered before the Eighth Congress of Comparative Law, held at Pescara in 1970, he acknowledged the omnipresent tendency of treating know-how as a trade secret and so was unhesitant to use the terms ''know-how'' and ''trade secret'' interchangeably. 179 This view finds some judicial support. For instance, in Carboline v. Jarboe, 180 the court initially referred to imposition of an injunction on the plaintiff's assets and enjoined defendants from using the plaintiff's formulae and know-how. The ensuing text, though, made no reference to formulae and know-how. The term ''trade secret'' was instead used to refer to ''the plaintiff's damages for the misappropriation of trade secrets''. 181 Similarly, in BF Goodrich v. Wohlgemuth, 182 the judge initially used the terms ''advanced know-how and techniques'' but relied only on ''trade secrets'' thereafter. 183 One might get the impression that the interchangeable use of the words may be due to judicial imprecision; however, the case law furnishes a significant number of examples to perhaps oppose such a presumption. 184

Know-How as a Similar Concept to Trade Secret?
U.S. case law and scholarship also furnish examples where know-how is viewed as a concept similar to trade secrets, 185 but is perhaps broader in its scope. Stephen Ladas is among the scholars who support a broad definition of know-how. 186 He defines ''know-how'' by designating matters that the concept might encompass: 187 While this is a convenient term to denote a variety of different matters, it does not define protectable subject matter. Indeed, in ordinary use know-how may include tangible materials: recipes, formulae, designs, drawings, patterns, blueprints, technical records, specifications, lists of materials, technical product and process manuals, written instructions for operating the process and analytical means for checking and controlling the product and the process and the like; and intangible information consisting in practical procedures, details of workshop practice, technical training, personal visitation and inspection, etc. It also may include singly or in combination: information relating to a patented invention not included in a patent specification; inventions capable of being patented but not patented; inventions incapable of being patented in a particular country because of the subject matter being excluded in the patent law; inventions incapable of being patented by reason of lack of inventive height; industrial designs capable of being registered but not registered; industrial designs having functional characteristics; skill, experience and craftsmanship of technicians.
Finally, for whatever reason, the UTSA's drafters did not attempt to elucidate the distinction between know-how and trade secrets with any precision. By way of comment, the UTSA reveals that the words ''method'' and ''technique'' in the UTSA's trade secret definition were inserted to cover know-how. It seems that this acknowledged that know-how was distinct from trade secrets. 192

Trade Secrets vs. Know-How -Remaining Challenges
From a doctrinal perspective, the debate surrounding the terminological confusion between ''know-how'' and ''trade secrets'' seems to have largely surfaced in the course of the 1970s and 1980s. The trade secret legislation enacted thereafter that favored the use of the term ''trade secret'' perhaps suppressed the need to define ''know-how'' in a legal sense. Yet, in practice, contracting parties frequently adopt ''know-how'' terminology when transferring information that may generally be defined as a ''trade secret''. 193 Legal commentators Louis Altman and Malla Pollack perhaps best described the above confusion when they made the following observation: 194 Some courts have complained that ''know-how'' is a very fuzzily defined area, used primarily as a short-hand device for stating the conclusion that a process is protectable or that it is so amorphous a concept that language is oftentimes inadequate to delineate the respective rights of the parties. The law has difficulty with the uncertainty that surrounds the concept of ''know-how''. It has been said that ''know-how'', in terms of content and legal status, is like a cloud in the sky that forms, dissolves, forms again, shapes and reshapes as the atmospheric conditions change.
Footnote 191 continued counseling program, which includes some thirty-six elements, should be accorded trade secret protection as the program incorporates 'know-how' and 'negative know-how' attained through accumulated experience. The alleged trade secrets include such instruction techniques as: the program being conducted on consecutive days … instructor review and critique''. See further SI Handling Sys. Inc. v. Heisley, 753 F.2d 1244, 1261(3d Cir. 1985 where the court outlined: ''[a]s the district court described it, this 'know-how' is 'the cumulative knowledge and experience necessary to design a materials handling system which answers a particular customer's needs in a unique way. As such it goes far beyond the general knowledge and skill which any employee might gain by working at SI.... SI's system engineering know-how -the knowledge of how to make a system work -on the other hand is grounded in the trial and error, experimentation and expenditures of investment dollars over the period of product development. This know-how belongs to SI, is a valuable secret to it and has unlawfully been appropriated by defendants'''. 192 See UTSA, § 1 cmt.
It is, therefore, unsurprising that the use of the term when encountered in practice still challenges the minds of judges, lawyers and scholars. 195

The Way Forward?
The foregoing analysis demonstrates that the understanding of the trade secret concept in the U.S. has evolved considerably over the last two centuries. From being initially conceived and governed by common law, the trade secret definition can currently be found in the parallel application of the statutory provisions under the state-enacted UTSA versions and the federal provision under the DTSA. Yet the existence of statutory trade secret definitions does not mean that U.S. law is immune from challenges in their application. As mentioned earlier in the paper, the USTA's non-binding and the DTSA's non-pre-emptive character 196 have spawned a multitier trade secret definitional system, which may be counter-productive when it comes to definitional clarity and certainty.
Nevertheless, it seems that the U.S. Congress remains deaf to calls from scholars and practitioners to enact a pre-emptive legal instrument to articulate the definition and other principles of trade secret law within a unitary framework. Instead, the federal law has added another definitional layer to the already conflicting landscape. Whether or not judges will be able to navigate this easily and avoid the conflicts of application of multi-tier definitional layers is still too early to determine given the relatively recent enactment of the DTSA.

Is Pre-Emption the Ultimate Solution?
A question that remains is that even if Congress intervenes and makes the DTSA a pre-emptive statute, and if the law becomes uniform as a result of the amendment, will that necessarily resolve the issues pertaining to the trade secret definition? Uniformity of domestic law under one statute, although highly desirable, is no guarantee for the resolution of every problem towards which a statute is directed. For instance, uniform law will not necessarily be an answer to problems that arise and continuously surface in trade secret misappropriation cases that include an international component. These situations are particularly challenging for U.S. businesses that are often involved in international transfer agreements and/or supply chains, which as a result makes them more vulnerable and exposed to misappropriation of their trade secrets by foreign actors. Although in cases of misappropriation the U.S. trade secret owners can invoke and rely on the extraterritorial application of the DTSA, 197 the international element may in some cases impose an application of law other than the domestic one. If the rules on conflict of laws apply and lead to a situation where law other than the U.S. trade secret law is applicable, 195 Ibid. 196 As to the USTA's non-binding character and the DTSA's non-pre-emptive character, see 1.2 and 1. 3.2, respectively. 197 As to the DTSA'S extraterritorial application, see 1.3.2. then whether the domestic law is uniform or not will be of limited value for those affected.

''Limited Value'' of the Trade Secret Definition Under the TRIPS Agreement
Instances where the answer to the question of whether a particular asset should be recognized as a trade secret or not needs to be found outside the U.S. jurisdictional borders and might prove equally challenging for U.S. trade secret owners given that there is no consensus regarding what a trade secret is in the international context. The only international treaty touching on the subject is the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (''TRIPS''), under the auspices of the World Trade Organization (''WTO''). 198 Pursuant to Art. 39, TRIPS obliged WTO members to protect ''undisclosed information'' (encompassing trade secrets) ''for the purpose of ensuring effective protection against unfair competition' '. 199 The Agreement in Art. 39(2) loosely defined ''undisclosed information'' and acknowledged the right of the owner to protect it against disclosure, acquisition or use by others ''in a manner contrary to honest commercial practices'' 200 by stipulating that: 201 Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
It should be noted that the U.S. was the major proponent for the ''inclusion'' of trade secrets under the TRIPS Agreement. Namely, the negotiation process preceding the inclusion of these provisions featured a controversy as to whether 198 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995), annex 1C (Agreement on Trade-Related Aspects of Intellectual Property Rights) (''TRIPS''). 199 TRIPS, Art 39. The inclusion of this provision is hardly a novelty since protection against unfair competition was already established under the Paris Convention for the Protection of Industrial Property, opened for signature 14 July 1967, WIPO Lex No.TRT (as amended 28 September 1979, entered into force 3 June 1984), Art. 10 bis . 200 TRIPS made only cursory reference to this provision in footnote 10, specifying that ''[a] 'manner contrary to honest commercial practices' shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition'', TRIPS, Art. 39(2), note 10. 201 TRIPS, Art. 39(2)(a)-(c). trade secrets should be recognized as IP rights or not and hence included within the realm of this Agreement. 202 Some developing countries, such as India, Peru, and Brazil, opposed such an idea on the basis that trade secrets are not IP rights. 203 On the other hand, by the 1990s the U.S. was a well-developed country where trade secrets were already recognized as IP rights and played a major role in the economy. Consequently, the U.S. sought in TRIPS an avenue for establishing an international intellectual property regime that advanced their recognition and protection. Ultimately, the leading position of the U.S. in the negotiation process and the support by other countries 204  Trade secret protection should be broadly available and cover items such as any formula, device, compilation of information, computer program, pattern, technique or process that is used in one's business or that has actual or potential economic value from not being generally known. Protection should be accorded both to technical information, such as technical drawings or operational specifications, and commercial information, such as price or customer lists or business methods, regardless of whether the trade secret is in a tangible form, such as a machine or written record, or is maintained without tangible means, for example, by memory.
Despite the U.S. proposal, the TRIPS' drafters opted for a slightly different wording of the trade secret definition which was eventually included under the official text of Art. 39. When compared to the DTSA, the TRIPS definition appears less specific in detail. First, Art. 39(2)(a) of TRIPS simply defines the scope of subject matter protectable as a trade secret as information, while the DTSA's definition provides further detail as to what this information might encompass or be related to. 206 One might argue that the TRIPS trade secret definition was formulated to be elastic enough to encompass any form of secret information of commercial value, yet judicial references surfacing in cases such as Aleynikov perhaps might serve to oppose such presumptions. 207 Further, the formulation of subparagraph Art. 39(2)(a) lacks clarity vis-à-vis the determination of the secrecy criterion. Some confusion may arise because Art. 39(2)(a) frames the parameters of the secrecy of the information against ''not being known'' among or ''readily accessible'' to persons within the circles that normally deal with the kind of information in question. 208 It could be argued that the wording of this provision does not provide an answer as to whether the information that 202 Verma (1998), p. 729. became ''known'' or ''readily accessible'' by lawful means or gross negligence to another person who can benefit from the disclosure will still qualify as a secret. Perhaps the definition should be amended to reflect better the relative level of secrecy but also afford protection of the information that becomes readily accessible to another by lawful means. This could be achieved by removing the phrase ''or readily accessible to'' after ''generally known among'' in line two and relocating the phrase in line three as follows: Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among [or readily accessible to] persons within the circles that normally deal with the kind of information in question or readily accessible by another person who can obtain economic value from the disclosure or use of the information.
This would put the TRIPS definition on a par with the DTSA definition which appears to be more precise in this context and stipulates that the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information. 209 It appears that without further intervention in the TRIPS text the trade secret definition might be of limited value for those U.S. parties who seek recognition of their assets under the national regimes of foreign jurisdictions.

Further Intervention at International Level -A Necessity?
More than 25 years after TRIPS, a number of initiatives taken in each jurisdiction, the challenges for the judiciary, and the immense losses suffered from businesses resulting from the inconsistency of the laws within and beyond jurisdictional lines underscore the need for intervention at an international level. An increasingly global society provides little justification for trade secret protection to remain governed by state-based approaches.
The fact that other regimes within the IP law have been subject to harmonization raises the question of why the international IP bodies have left trade secret law as an ''orphan child''. 210 The current challenges in the application of this law clearly indicate that the time has come for trade secret law to be taken under their auspices and be given adequate attention via the enactment of an internationally binding instrument.

Drafting an Internationally Binding Treaty: The DTSA -The Model
to Follow?
Whether an initiative for harmonization will be pursued, and whether a consensus will be reached at an international level, remains uncertain. Implementing an international instrument is not an easy process, ''not only because harmonization efforts are often seen as an affront to sovereignty but also because of differences of opinion about what the various provisions of the harmonized laws mean and how those laws should be applied and enforced''. 211 Even if nations ''adopt that law, there are always … other things that come into play, including other laws, other treaties, social norms, and so forth''. 212 It could, however, be argued that the importance of trade secrets for the U.S. economy 213 should be a signal for the U.S. regulative bodies to respond to the challenges arising from the lack of uniform law. The U.S. has to date demonstrated its ability to influence an international initiative during the TRIPS negotiation process and perhaps should consider embarking on and leading the initiative for harmonization of trade secret law in a global context.
If the road leads towards harmonization of trade secret law, then the U.S law, which under the DTSA propounds a comprehensive scheme governing both civil and criminal law aspects, could be used as a model for drafting an international treaty. The key provisions incorporated under the DTSA, including the ''trade secret'' definition, have been implemented and amended in time to address the current challenges in an effective manner.
The fact that trade secret laws of other states was modelled upon the DTSA, such as the recent EU Trade Secrets Directive of 2016/943, 214 and some provisions of the Australian Espionage Act of 2018 215 are also reminiscent of the provisions contained in the DTSA 216 speak in favor of such an outcome.

Conclusion
The foregoing analysis of the developments in the U.S. leads to a conclusion that the understanding of the concept of a trade secret and the way various states postulated the basic definitional principles of its scope varied, often influenced by the epoch in which the definition was formulated. Hence, having a uniform and preferably blackletter definition was of significant importance for parties involved in dealings with trade secrets, as a way of increasing clarity and predictability when delineating the scope of protectable subject matter. After several attempts to draft a precise definition and a few amendments, U.S. law currently has statutory trade secret definitions that are applicable at state and federal level in criminal and civil matters. This, however, did not solve the issues pertaining to the trade secret definition. Challenges arise given that interested parties when defining their trade secrets need to comply with 51 variations of the UTSA's definition as well as the DTSA's definition. The gravity of the situation exacerbates once trade secrets leave the U.S. borders.
This paper argues for a standardized statutory trade secret regime, in a domestic and global context. It can be argued that a pre-emptive statutory regime under the DTSA will be able to resolve most of the challenges that currently arise in terms of defining trade secrets in the U.S. However, in an increasingly global society where the use of trade secrets is rarely confined to jurisdictional borders, its application needs to be supported, i.e. coupled with an internationally binding treaty whose provisions should be complementary to, if not the same as, the DTSA. Only a combined domestic and international initiative could potentially achieve an outcome of clarity and predictability regarding the U.S. trade secret definition and trade secret law in general.
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