FALL 2010

Trade Secrets


Course No. 9200-704 (& 804)-801

ID No. 85737 & 85736

Time:  W 6:30 - 9:30 p.m.
Room:  W-215
Professor Jay Dratler, Jr.
Room Across from 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2002, 2003, 2006, 2008, 2010   Jay Dratler, Jr.   For permission, see CMI.

Questions and Notes on Tabor v. Hoffman

1.  Was this a contract or a tort case?  Did plaintiff Tabor have an agreement with Walz, who repaired the plaintiff's pump patterns (moulds)?  Did Tabor have an agreement with the defendant Hoffman?  Did the court rely on any contract?

2.  This case was decided over 90 years before the advent of the Uniform Trade Secrets Act.  Under what authority or power did the court purport to provide a remedy?  What this "judicial legislation" or something else?

3.  Just as Mason might have tried to patent his Lynchburg Lemonade, Tabor might have tried to patent his pump.  To get a patent, Tabor would have had to show that his pump was new and nonobvious as compared to all "prior art," i.e., all similar pumps for similar purposes.  See 35 U.S.C. §§ 101-103.  Then he would have had to disclose his pump's operation in the patent application, to be published if the patent issued.  See 35 U.S.C. §§ 112.  His patent, if available, would then issue (at the time for seventeen years), and he would be protected only if he could show, in patent litigation, that any allegedly infringing pump precisely met the description in his patent.

If you had advised Tabor before this controversy arose, would you have advised him to seek a patent?  What are the advantages of Tabor's doing so?  What disadvantages?

4.  What precisely was the trade secret in this case?  Was it the shape of the pump, the arrangement of the pump parts, the size of the pump parts, or the size of the "patterns" or moulds for making the parts?  Would it have made a difference in legal theory which one of these things Tabor claimed as his trade secrets?  If so, why?

5.  What is the legal theory underlying Tabor's success in this case?  Does Tabor have an exclusive property right although he never got (nor even sought) a patent?  Or is judgment for Tabor based on the wrongful nature of the defendant Hoffman's act(s)?  How would you describe the nature of the cause of action?

6.  Consider the result in this case (Tabor wins), as compared to its opposite (Hoffman wins).  What social benefits, if any, does the court's result have?  What economic benefits?  What would be the consequences of the opposite result?  What might Tabor and businesspeople similarly situated do?  What might they not do?  What would the ultimate effect be?  For businesspeople with proprietary technology?  For society as a whole?

7.  This case is another "third-party misappropriation" case.  The defendant (Hoffman) did not get the trade secret directly from the plaintiff (Tabor), but indirectly from a third party (Walz), whom Tabor had hired to repair his patterns (moulds).  Walz, the third party, might be liable for breach of an implied obligation not to disclose the pump patterns or information regarding them while in his hands for repairs.  Is Hoffman's liability derivative of Walz's, or does it stand on a separate footing?  If separate, what footing?

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