Thomas Edison once protested, "I haven't failed. I've simply found 10,000 ways that do not work." In the world of trade secrets, a remarkable example of the controversial expansion of the types of information and knowledge that can be deemed secret in the battles of our talent wars is negative know-how [JC emphasis]--the knowledge of what not to do. An example of negative know-how is when an ex-employee will not undertake a series of failed ways to get to a certain chemical result, but tests other unknown ways until she strikes success [as we've pointed out before, trial and error is not random]. Claiming theft of negative know-how is described as one of the strangest developments in trade secret law. When courts protect negative know-how as the property of an ex-employer the consequence for inventors who move to a new firm can be liability for not repeating past mistakes and failures.
Certainly, if companies are claiming ownership of their former employees' knowledge of what not to do, learning from mistakes must really be important. Right?
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