74 Am. U. L. Rev. 1551 (2025).

Abstract

Although patents are well known to negatively impact health when drugs are unaffordable, trade secrets also harm health, and in more ways than patents. Patented drugs harm public health simply by temporarily increasing prices on treatments. Trade secrets, on the other hand, can not only increase treatment costs, but also hide knowledge needed for effective medical treatment. Also, because patents, but not trade secrets, have a limited term, patent health harms clearly terminate while trade secret harms do not. Moreover, the public may not even be fully aware of all trade secret health harms because trade secret information is, by definition, secret, whereas patents are public documents. Although trade secret and patent owners alike claim that protection promotes innovation, this claim is increasingly challenged for patented drugs, yet generally not questioned with trade secrets. Secret information compromises medical treatment and exposes us all to unknown and potentially carcinogenic or otherwise harmful chemicals in household products and drinking water. The many unaddressed health harms of trade secrets are an open secret that need to be addressed.

This Article argues that inadequate attention has been paid to the serious impacts on public health that arise from the combination of greater use of trade secrecy and lack of government scrutiny. This Article provides a comprehensive evaluation of how policymakers fail to recognize health harms of undisclosed trade secrets in contrast to patent rights. It documents how federal regulations governing multiple agencies improperly shield secrets from adequate scrutiny, resulting in serious health harms. Contrary to prevailing assumptions that trade secrets only provide weak protection compared to patents, this Article documents how secrets in government possession effectively have more protection because they are often presumed valid with minimal, if any, scrutiny. This Article also challenges conventional wisdom that trade secrets always serve to promote innovation by providing contrary evidence.

To ensure that trade secrets function as effective intellectual property that overall benefits the public, rather than solely the interests of its owners, this Article concludes with concrete and novel proposals for reform. This Article recommends amending trade secret law to clarify that disclosure to protect public health in specific instances is not a violation of trade secret rights. In addition, the Article proposes needed changes to regulatory laws to permit health-protective disclosure, as well as new mechanisms to better police unjustified trade secret claims. The Article also argues that policymakers should better interrogate trade secret law and policy and provides specific suggestions for how to do so despite the lack of any agency currently tasked with consideration of trade secrets, unlike all other dominant areas of IP.

* Clifford E. Vickrey Research Professor, Loyola University of Chicago School of Law. The author thanks all participants of the 2024 Trade Secret Scholar Workshop, and the 2023 Chicago Health Law Scholars workshop, for their helpful comments on prior drafts. In addition, special thanks to Charles Tait Graves and Charlotte Tschider for comments on multiple prior drafts, and to Liza Vertinsky and Yaniv Heled for initial discussions and collaborations. This Article benefited from a summer research grant from Loyola University of Chicago School of Law, as well as financial support for research assistance. Thanks to students who provided assistance, including Nicole Celewicz, Iris Gomez, Bailey Hammond, Maris Medina, and Kate Pearson, with special thanks to Jesse Shelton who provided substantial research support. All errors, are, of course, my own.