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Why should there be trade secret exclusion? Regulators often are asked this question. One reason is that legitimate trade secrets are protectable under many state laws, as for example the North Carolina Trade Secrets Protection Act, embodied in Article 24, Section 66-152 of the North Carolina General Statutes. The other reason concerns the public desire for the industry to create means to use greener chemicals. If a company succeeds, it ought to be afforded intellectual property protection rights, the sort available to all citizens. One means for such rights is patents. The neat feature about patents (from a public disclosure standpoint) is that 18 months after filing, all the contents are published whether or not the patent is eventually granted. Rarely does an invention make it to commercialization within that period. So the public will in effect be informed in good time.

Intellectual Property

Intellectual property in commerce falls into four principal categories: patents, copyrights, trademarks, and trade secrets. The first three are covered by federal law in most countries. Trade secret law in the US is at the state level, although most states follow the same strictures by using the Uniform Trade Secrets Act.

Patents are granted to a person or entity if certain standards of novelty and non-obviousness are met. This entitles the holder to exclusivity for 21 years following the filing. In return for this right, the public is allowed access to the invention after the 21 years. The framers believed that this compact was best for the world at large because a closely held secret inhibits commerce due to the fact that only one entity can supply it and innovate to improve it. A common example of this value to the public is the plummeting cost of a drug when it goes “off patent.” Generic drugs constitute a huge and thriving business affording the public low-cost access.

As mentioned in the main text, all patents are published 18 months after filing. This was not always the case in the US. Inventors had been allowed to file and had no requirement to publicly disclose the contents were the patent not granted. But the comfort granted the public by this disclosure is tempered by an interesting aspect of clever patenting. The best patents, from the point of view of the inventor, are those in which enough information is provided to the examiners to get allowance, and yet critical elements are withheld to prevent competitors from knowing what exact combination was used or in what precise proportion. In the context of public disclosure of fracturing chemicals, a point of note is that these stratagems are devised to thwart competitors, not to deny the public information. But they could nevertheless have that effect, and state regulations ought to take these nuances into account. However, as noted later, from a public safety standpoint, not knowing proportions may not matter much.

Trademarks and copyrights are types of property that have no bearing on the main debate in this chapter. But trade secrets certainly do and are, in fact, the main issue. Inventions are often kept as trade secrets if they could easily be worked around. This is often the case for apparatus as opposed to methods. Also, patents are not useful unless the infringer can be detected as doing so. So, inventions that do not meet these two standards will be considered for relegation to the trade secret pile. The point here is that there are good and valid reasons for holding innovations as trade secrets, and doing so does not necessarily make them any less innovative. Regulators ought to treat trade secrets with as much respect as any other form of intellectual property. Accordingly, the trade secret exclusion to the chemical disclosure laws has a legitimate place.

Chapter 6. The Chemicals Disclosure Conundrum 37 Sometimes a company may choose not to patent and to merely hold the innovation as a trade secret. An example is the formula for Coca-Cola syrup. The formula constitutes intellectual property and it would not be fair to require disclosure, which would enable their competitors to copy them. This appears to be the basis for the trade secret provisions in state laws. In these cases, companies have stringent procedures to prevent inadvertent public disclosure. Any company claiming the trade secret exclusion ought to be required to submit an affidavit asserting that the claimed item received such care and that the details had not already been made public. This requirement could be expected to limit the exclusion claims to genuine trade secrets. The foregoing forms the basis for the rule set by the North Carolina Mining and Energy Commission, of which I am the chairman. It was passed by the North Carolina legislature and is now the law.

Some in industry are pushing back on the idea that trade secret claims face verification by a state body. One reasonable basis for concern on their part would be undue legal burden, with attendant costs and delays. This concern would be taken care of by and large if the state body merely required the filing of a short brief stipulating that the claimed trade secret had received the same care as their other trade secrets. In unusual cases the state body may seek a short interview to clarify some aspect. The second area of concern could be the inadvertent disclosure of the trade secret by the review body. This concern can be addressed in a couple of ways: The review body could have very few people, as few as three. The secret information, and all documents pertaining to it, could be returned to the company promptly after the review. This sort of thing is commonplace in commercial transactions such as the sale of one company to another. The business confidential information in these cases may have much greater value than those in the matters discussed above, and yet the secrecy aspect of the transaction is rarely a consideration impeding the deal. Furthermore, most state agencies routinely receive business- sensitive information in the process of permitting or the granting of special considerations such as tax forgiveness.