Vale Think Secret

December 21st, 2007

Apple announced that it has settled two-year old litigation over Apple rumor blog Think Secret’s publication of information about the then-pending release of the Mac Mini computer. Some pundits have expressed concern that the settlement involves closing down Think Secret’s site, and that this may set an unhappy precedent for other blogs.

That worry seems a bit overblown to me- being put out of business by a big-guy litigant is an ever-present risk for little guys everywhere. Just because it happened once doesn’t make it any more or less likely to keep happening.

What I found interesting in the case, in light of my earlier post about trade secrets, is that Apple initially brought suit claiming trade secret infringement. I.e. that the existence of and Apple’s plans for the Mac Mini were not-generally-known information with economic value that Apple had taken steps to keep secret. The court disagreed and held that the information did not constitute a trade secret.

Here’s another difference between trade secrets and other types of IP, then- a party has to prove to the court first that it owns a trade secret, and then that the secret has been improperly disclosed. Patents and trademarks are registered through processes in front of Patent and Trademark Office attorneys, not by a judge or jury.

It isn’t immediately clear to me if this is a positive or negative attribute of trade secrets. It may be as simple as pay now (for patent or trademark registration) or pay later (when trade secret litigation comes up). Depending on how complex the topic is, I can see a USPTO examining attorney reaching a different conclusion from a judicial factfinder (judge or jury) about whether certain information is proprietary. At the least USPTO precedents and procedures are a bit better mapped so the outcome may be a little more predictable. Banking on a court to uphold a trade secret requires an extra roll of the dice.

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  • Here’s another difference between trade secrets and other types of IP, then- a party has to prove to the court first that it owns a trade secret, and then that the secret has been improperly disclosed. Patents and trademarks are registered through processes in front of Patent and Trademark Office attorneys, not by a judge or jury.

  • Here’s another difference between trade secrets and other types of IP, then- a party has to prove to the court first that it owns a trade secret, and then that the secret has been improperly disclosed. Patents and trademarks are registered through processes in front of Patent and Trademark Office attorneys, not by a judge or jury.