Trade Secret is an economically viable alternative for Haitians and citizens of other third world countries alike.
At the turn of the 21st century, we Haitians must develop an appreciation for information in order to provide the Haitian economy with a competitive edge. One type of our resources that often remains unexploited is the knowledge possessed by our peasants, our craftsmen, our voodoo priests and so on. These types of information, if properly studied, structured and packaged, could constitute a valuable source of income for our countrymen. If we consider for example, our peasants’ use of leaves to heal diseases, or to make poisons, such knowledge could be possibly marketed as what’s known as trade secrets.
What is a trade secret?
According to the Uniform Trade Secret Act of 1986, a trade secret consists of any information, including, but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that 1) derives independent economic value, actual or potential, not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and 2) is subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Pursuant to the above definition of trade secret, those leaves, whether used for healing purposes or poisons, fall within the category of formula that are not generally known or not readily ascertainable by proper means. This is evidenced by the fact that special knowledge is required in order to make these formulas. One must know how the leaves must be combined and what proportion of those leaves must be used for the desired result. One must also know whether they must they must be served hot cold, mashed or raw under each particular circumstance. Additionally, these formulas are maintained reasonably secret by their owners who seldom share them with friends or family members who are also sworn to secrecy.
If these formulas are potential trade secrets, why aren’t their owners deriving independent economic value from them? The answer to this question seems to be explained to a widespread lack of information. Often, the owners of these trade secrets do not perceive their special knowledge as a means to derive economic end therefrom. Rather, they simply view them in the traditional way to help and assist others. They do not know otherwise ad no one really tries to assist them in that perspective. At times, they’re perceived as backward for relying on such ancient methods, instead of recurring to modern healing means available in pharmacies, as advertised on television, radio, newspapers, etc..
The protection of these formulas as trade secrets, as opposed to patent rights, offers a viable alternative for our poor peasants in Haiti since it does not require the hefty fees for securing patent rights or trademarks. Further, unlike patents, trademarks and copyrights, a trade secret can last indefinitely as long as it remains secret. Although one runs the risk of having one’s trade secret extinguished if another person independently derives or reverse engineers it, under the circumstances, our trade secret owners could use their best efforts to maintain the secrecy of their products, while earning adequate income therefrom to later decide whether they should secure exclusive rights as provided by patent laws, copyright laws or trademark laws bearing in mind that owners of a trade secret must file for a patent within one year of commercial use of the trade secret to prevent it from being barred by for the sale statute. One can nonetheless secure a patent right and a trade secret on a product given that two different groups of people worked in complete isolation from each other such that the inventive entity discloses the best mode known to the inventors at the time of filing, which is not necessarily the same best mode as embodied in the trade secret. Similarly, one can have a copyright on a product, while holding a trade secret thereon since a product can be divided such that only a part of it is copyrighted.
Bear in mind that a patent or a trademarks rights carry distinct advantages over trade secrets since a patent or trademark is presumed valid in a court of law due to the full disclosure requirement of these intellectual property rights, whereas the burden for proving the validity of a trade secret rests on its owner. Further, patent and trademarks fall under federal laws and are harmonized internationally through treaties and global laws, whereas trade secrets are not. Despite the distinct disadvantages of trade secret vis-à-vis the aforementioned intellectual property rights, it is a thrifty alternative for citizens of poor countries, like Haiti. It allows them to reap the benefits of intellectual property at little or no cost. It further gives them the opportunity to have a better appreciation for the value of information and the wealth lurking therein.
