Welcome Back, For the New Season of the Made-for-CW Drama, iPaint

By Steve McDaniel, JD PhD, Contributing Editor | July 7, 2014

Overly dramatic? OK, look, I’ll admit it.

I am a made-for-TV drama addict.  I can’t wait for the next superstars to populate True Detective, or to see how Red is gonna battle Vee’s contraband prison gang on Orange is the New Black, and or to bide my time until Steven Van Zandt gets off tour with Springsteen to creep us out in the hilarious Norewegian Lillyhammer.  And, yes, I am still in mourning for high-school-chemistry-teacher-gone-awry Walter White and the cast of Breaking Bad. In a very real tele-sense, a PhD chemist myself, I was addicted to the Blue Meth that only Heisenberg could cook.

So, in my dreams I imagine that there are some eclectic sorts out there that are going to be happy to see the return of new episodes of iPaint 2014.  True. It’s not ultra pure (blue) methamphetamine, but it IS focused on the chemistry business (of coatings) and may from time to time even mention pigments.

Our team (Beth, Jon and me) has put together a trailer, if you will, that gives you a peak under the tent as to what the next iPaint episodes will be.  While we reserve our prerogative to add and subtract, to expand and contract, and to take “requests” from you our CW readers, here you go.

Since the coatings industry has NOT changed from last year, and still relies heavily on protecting its products through trade secret protection, we will continue the predominant focus on trade secret topics.  We will expand that a bit to include complementary tools of trade secret protection, including copyright + trade secret synergies.  We will expand into the additional complementary fields of trade mark, trade name, trade dress and other ways in which customer confidence and loyalty is garnered, and the trade secret aspects of these assets.

A large focus will be given to the international trend that is growing to strengthen trade secret law. There are new laws and others being promoted in the U.S., in Europe, and even in China that portend the rising importance of trade secrets in the global economy. It is almost a given, even for small paint companies, that a world economic view is the only view to have.  Given that, we proceed at peril if we do not have a grasp of international trade secret law. Several “episodes” of  iPaint will be devoted to this crucial topic.  Any stories from the trenches that you think may help edify this topic would be most appreciated.

In previous last-season episodes (articles), we spent lots of time discussing the chiefly state-by-state development of the tort of trade secret misappropriation.  In some of our future articles, we will turn our attention to federal trade secret laws with some real teeth in them.  We will address the first federal law to directly and broadly address the protection of trade secrets, the 1996 Economic Espionage Act that created criminal penalties (including imprisonment) for theft of trade secrets.  More recently, we will note that Congress passed the Theft of Trade Secrets Clarification Act of 2012 to clarify the scope of the Economic Espionage Act in response to the decision of the U.S. Court of Appeals that overturned the conviction of a former Goldman Sachs employee who stole proprietary computer source code. Congress amended the Economic Espionage Act to cover products or services used in interstate or foreign commerce.  We will also explore the interactions of other laws that are being discussed at the federal level that will expand the scope of the Act even further.

Keeping our world-economic-view glasses on, we will discuss how trade secret law in the European Union is primarily controlled by its member states. The EU has recently taken major steps toward the creation of a unified system for the protection of trade secrets. We will explore some of the impacts of this unification on companies selling coatings into the European Union. 

No trade secret analysis is complete without considering China of course, as the world’s hottest economy, a huge market for coatings and coatings innovations, and a historically trade secret high-risk jurisdiction.  In 2011, Treasury Secretary Geithner went so far as to accuse China of enabling the “systematic stealing of intellectual property of American companies” and this was more recently reiterated by Gary Locke, U.S. Chinese Ambassador. We have previously discussed coatings cases involving theft of coatings technologies by Chinese entities. But, it is a rapidly changing scene and requires us to keep an ear to the Great Wall.

A dialogue will be opened regarding why U.S. companies suffering from industrial espionage have recently chosen to file complaints with the U.S. International Trade Commission (ITC), and discuss the advantages and disadvantages the ITC offers as a judicial arbiter for coatings companies. Being able to literally stop importation of foreign products embodying a misappropriated U.S. company trade secret ain’t a bad option.

We will continue our in depth-look at the “paper wall” surrounding trade secret assets.  We will be looking at provisions that should be incorporated into trade-secret licenses, technical assistance agreements, and hybrid patent/trade-secret licenses. These provisions include clauses that spell out license grants, royalty payments, indemnities, warranties, terms and termination conditions, etc.  Hybrid agreements, and the problems they create will be discussed.  Since it is a misuse of a patent or an antitrust violation to exact royalty payments after a patent ceases to be in force, we will explore solutions to this predicament.

So there’s your episode trailer for the year upcoming. Oh, that Walter White were still around to love and loathe.  But, in his absence, I remain,

Yours Very Truly,
McDaniel, aka Heisenberg.

Related Raw Materials: