Evolution of Modern Trade Secret Law

• Jurisdiction: Maryland

III. EVOLUTION OF MODERN TRADE SECRET LAW

Scholarly debate exists concerning the source of trade secret protection, but it appears to have ancient origins.²⁴ One commentator asserts that trade secret protection existed during the late Roman Republic and early Empire through an action known as actio servi corrupti—an action for corruption of a servant who, conceivably, could have been coerced by a competitor to disclose his master's trade secrets.²⁵ At least one expert disagrees, however, contending that no evidence exists that actio servi corrupti was ever so used, and considers it "bizarre to see to any degree [the doctrine] as the counterpart of modern law for the protection of trade secrets."²⁶

While the ancient roots of trade secret protection may remain controversial, it is well documented that, in the nineteenth century, Massachusetts played a leading role in the development of trade secret law in America. In 1837, the Massachusetts Supreme Court decided Vickery v. Welch.²⁷ The court determined that the defendant's bond was forfeited when he reneged on its requirement that he transfer his chocolate factory, along with the "exclusive right and art or secret manner of making chocolate and all information pertaining to said manner of making chocolate," to the plaintiff—a right, the court recognized as one that "had given great advantage to him in the manufacture of chocolate."²⁸...