Uncorking Trade Secrets : Sparking the Interaction Between Trade Secrecy and Open Biotechnology

The exchange of patented inventions and related know-how often takes place through bilateral or cross licenses. Our previous research examined the role of collaborative licensing models in streamlining access and use of patents, specifically in the field in genetics. The present essay examines the potential role of collaborative licensing models in facilitating the transfer of related trade secrets. The central question, around which the essay revolves, is whether the transfer of know-how, incident to a patent, might be accelerated by the use of collaborative licensing strategies. In other words, can collaborative institutions fuel the sharing of trade secrets and reshape them into “open secrets,” thereby fostering the construction of “open biotechnology” projects and infrastructures? This question is explored from a conceptual-theoretical and empirical perspective, rather than from a normative point of view. The present paper will conclude that, in principle, collaborative license mechanisms, in particular patent pools and open source regimes, may facilitate the transfer of know-how complementary to patented inventions, and thus assist in uncorking know-how and fostering “open secrets.” Clearinghouses seem somewhat less fit to assist in the transfer of confidential technical information incidental to patented inventions, but they may be useful for the exchange of confidential business information. In practice, however, knowledge producers have been somewhat reluctant to make use of collaborative licensing models in the life sciences in order to engage in hybrid licensing agreements involving the exchange of both patents and trade secrets. The absence of a personal relation of trust and Europe’s lack of a well established codification of trade secrecy law modeled along the lines of the Uniform Trade Secrets Act (UTSA) may well account for some hesitation about participating in such collaborative rights platforms