Seminar with Jacob S. Sherkow

The Myth of Genomic Trade Secrecy: A U.S. Perspective

Abstract

Are genomic sequences subject to trade secrecy protection? At least two decades of scholarship has assumed so. But, in fact, there are very few reported decisions directly on point and virtually no explicit statutory authority. More importantly, however, an investigation into the elements of trade secrecy law—read in light of rapid advances and expansion of genomic sequencing—suggests the answer is probably, No. Generally, trade secrets constitute that information which is subject to “reasonable measures” to guard its secrecy; is not “readily ascertainable” to others; and derives “independent economic value” from its secrecy.  But given the ease and ubiquity of genomic sequencing, it’s not clear whether genomic data can be “secret” at all or, rather, “readily ascertainable” if the underlying source is known. Nor should it be assumed that keeping such information secret confers “independent economic value” to its owner.  The value to much genomic information lies in its public disclosure and use with other information—not secrecy of the genomic data itself. Lastly, even assuming that some DNA sequencing or genomic information was once protectable, recent technological and market developments may have extinguished the secrecy and competitive advantage of such information. This suggests that while DNA sequences and genomic information could be de facto secrets, some—perhaps a good many—may not be trade secrets.

Registration 

Please register no later than the 14 June 2022 at 14:00 using this registration form

Bio

Jacob S. Sherkow is Professor of Law at the College of Law, Professor of Medicine at the Carle Illinois College of Medicine, and Affiliate of the Carl R. Woese Institute for Genomic Biology at the University of Illinois. Prof. Sherkow’s research focuses on the legal and ethical implications of advanced biotechnologies, especially as related to intellectual property. He is a leading expert on IP protection for genome-editing technologies, including CRISPR. He is the author of over 60 articles published in both scientific journals and traditional law reviews, including Science, Nature, the Yale Law Journal, and the Stanford Law Review. Since 2018, Sherkow has also been a Permanent Visiting Professor at the Center for Advanced Studies in Biomedical Innovation Law (“CeBIL”) at the University of Copenhagen Faculty of Law. Sherkow’s work has been recognized by both the scientific and legal communities. In 2018, he was appointed to the National Academy of Medicine as an Emerging Leader in Health and Medicine Scholar, and just completed service as an Academic Advisor to the Academies’ Committee on Emerging Science, Technology, and Innovation. Sherkow graduated cum laude from the University of Michigan Law School, where he was an editor of the Michigan Law Review. He holds an M.A. in biotechnology from Columbia University and a B.Sc. from McGill University. In addition to his legal training, Sherkow has several years of experience as a research scientist in molecular biology.