Jacob S. Sherkow

Volume 75, Issue 4, 1047-1096

Are DNA sequences subject to trade secrecy protection? At least three decades of scholarship has assumed so even while there is no explicit statutory authority directly on point and very few reported decisions in the area. And yet, an investigation into the elements of trade secrecy law—read in light of rapid advances in DNA and genomic sequencing—suggests the answer is probably, no. Those advances include the rise of cheap, accurate, easy, fast, and readily available DNA sequencing services, including the recent availability of whole human genome sequencing for less than a monthly cell phone bill. This cuts against some of the elements required for trade secret subject matter, namely, whether the sought-to-be protected information is “readily ascertainable” to the public and whether the information derives “independent economic value” from its secrecy. To date, neither caselaw nor scholarly case studies concerning genomic trade secrets have engaged with these advances. Understanding that much genomic data may not be protectable as a trade secret has several practical consequences, including the difficulty of litigating non-trade secret “stolen data” cases in federal fora; variability in enforcing non-disclosure agreements; and diminished remedies for breaches of confidence. More broadly, seeing that technological advances can upend the protectability of information once thought to be a trade secret yields several theoretical insights. It suggests that trade secrets, like some servitudes, can be terminated when faced with changed conditions. It also suggests that several defenses of trade secrecy—ready accessibility, independent derivation, and reverse engineering—are much closer to one another than typically conceived. And it demonstrates, à la the “comedy of the commons,” that work to remove trade secret protection may benefit both the former trade secret holder and the public at large. The omnipresence of next-generation DNA sequencing should spur a serious reexamination of DNA sequences as trade secrets, a belief that courts, policymakers, and scholars should now recognize is largely a myth.