Veil of Ignorance or Theory of Original Position

The Contractarian Principle refers to the hypothetical negotiation processes of a collection of laws by hypothetical persons who have an interest in the knowledge outcome. The result of such negotiation is, in theory, normatively justified by the ex-ante agreement authority to be bound by a set of laws. John Rawls said one of those contract theories as “the veil of ignorance.”

The veil of ignorance is a theory that indicates the state of nature predating the distribution or circulation of rights and duties in which the decision-making public does not know which place they will hold after the circulation is complete. John Rawls further argued that those who create a society under the veil of ignorance should in theory follow the law, such as choosing a distribution of wealth that maximizes the person's wealth with the least in scenario. It is suggested that if one believes the right assumptions the public working in poverty will first want to make sure that if they turned out to be the least well off at any time, then they would not be destitute at all. Many of the lawyers then argued that companies would agree to allow reversed engineering on the industrial platform because of the advantages that these regulations could bring to all.

Professor Bone opposed Contractarian theory on the basis of world corporations or organizations that would object after the agreement reached by those who do not have the right to express their world desires during the negotiations. His claim exposed many of the issues associated with Contractarian theory as their moral power is highly dependent on the hypothetical bargaining constraints, since such constraints apply to many in the business world who would prefer an free market to decide such a body of law. Despite this criticism, one set of negotiating constraints will shed light on the issues of ignorance, namely the veil. The founders would not have the capacity under the veil to decide what place they would hold, and therefore the set of rules they would agree to be fair, just and rational. On a philosophical point of view, it is unclear to the real world public will consent to, in order to provide universal financial or moral support for such collection of laws. All arguments or evidence about the reasons for set of rules will be biased because discussion about rules will mainly be biased by owners of real worlds.

In such a relationship the target is hard to achieve through business laboratory thought experiments. It is important to decide what someone would consent to if, when making the right decision, he or she did not know their lot in life. In such arena, it contributes to a clear criticism of the veil of ignorance theory; further, there is no reason to assume that the product will benefit from any particular circulation of the right associated with trade secrets.

For addressing the following questions, such as:

1.            How does it require reverse engineering?

2.            How is unjust enrichment a Damage Measure?

3.            What is wrong meaning wider than wrongs in common law?

The response to all of the above questions depends on the results or they may all be a just result. Examination of the theory of ignorance is also useful from a normative point of view, although it is difficult to foresee the new law in the ordinary language. It is said that everyone should have recognized the balancing interest of anyone in the de novo or real position under the existing set of laws. It may qualify to explain the presence of secret trade law in society. In spite of all our efforts, we have no way of knowing whether a particular rule or set of rules is really the most efficient and successful under all given facts and circumstances, i.e. it is within the limits of reason that any sort of restricted trade secrets will result from a negotiation under the veil of ignorance if one assumes that people value what they produce. But at the same time, the public wants to build on the work of others that is in fact, a civil wrong.

Differentiation from other Intellectual Property: The word ‘trade secrets’ varies in different ways from other types of intellectual property rights. The most common distinction is focused primarily on the position of disclosures to individuals. Copyright and Patent owners are focused on the premise that creativity and invention are both covered by government intervention to promote the recovery of production or invention costs as such. In addition, the patent and copyright rights support the creation of prior work and the ability for all to use subject matter outside the scope of protected law or regulation.[1]

The trade secret owner is allowed for an indefinite period of time to retain information or knowledge that is neither new nor original. Trade secrets are handled quite the reverse in this way. Any information that may not be licensed or copyrighted is still in need of protection as long as the original owner retains confidentiality the information or knowledge.

The above discrepancies relate to the following two critiques of trade secret law, first-lack of incentives for citizens due to lack of information or knowledge sharing atmosphere and secondly, there is a very limited incentive to innovate because the owners gained security of knowledge by keeping it hidden, even in the absence of legislation. Similarity and dissimilarity of trade secrets in a particular way are as follows from other fields of intellectual property:

(i) As in the case of a patent, information or knowledge must not be original, new, valuable, lucrative or not apparent to be classified as a trade secret.[2]  Trade secret information does not need to be original, even allowing information that should not be protected under copyright at all.[3]

(ii) Like copyright, trade secret laws require identical or similar information to be protected if the information is independently discovered or discovered by two parties, but the same does not apply to patents and marks.[4]  More than one company that carry the same trade secrets, but each other would be unknown.

(iii) The right to exclude others shall only extend if information or knowledge is obtained in the proper manner but is not synonymous with all other types of intellectual property. It is also about the difference between fake copying and legitimate and independent creation using the copyright.[5]  It is, in fact, a poor comparison, as copyright does not actually require any wrongdoing other than copying itself, whereas abuse of trade secrets requires copying and other inappropriate modes as well.

(iv) The trade secrets are similar to the patent requirement for utility purposes and to the trademark requirement for its actual use[6], as they must have some legitimate market interest by being not knowledge to others. Nonetheless, this phenomenon is relatively not high, and minimal brow sweat is typically enough for the defense.[7] Therefore, it is easy to conclude that trade secrets need only real potential value, whereas trademarks need actual use in commercial activity, which means real value at market price.[8]

(iv) Trade secrets are often unregistered for licensing purposes while trademarks and copyrights are licensed as such. A patent has to be new, or a trademark, it has to be original, but a trade secret does not always need to be an absolute secret to be a trade secret.

Since of above similarity and dissimilarity, therefore, trade secrets exist without contradicting other areas of intellectual property rights. So, ultimately, if injunctive judicial procedures are given for a region, it has to be put forward. In this way, it needs criteria to determine whether a country has an appropriate judicial system to enforce trade secret security legislation.

 

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[1]Landes & Posner,  noting that the model 'incentive' versus 'license' is applicable to intellectual property, but should not be seen as a single analysis); note, though, that patented works should not be released for publicity, however there is no doubt that when such works are released and others can legally use parts of them in new works, the public can benefit more.

[2]35 U.S.C., 101–103 (2000).

[3]ABBA Rubber Co. v. Seaquist, 286 Cal.518-526 (1991).

[4]Rockwell Graphic Sys., Inc v. DEV Indus., Inc., 925 F.2d 174, 178 (7th Cir. 1991); Cadence Design Sys., Inc. v. Avant Corp., 57 P.3d 647, 650–51 (Cal. 2002).

[5]17 U.S.C.107 (2000).

[6] Lanham Act  1(a), 15 U.S.C. 1051(a) (2000).

[7] Alex Foods, Inc. v. Metcalfe, 290 P.2d 646, 654 (Cal. Dist. Ct. App. 1955) (finding that peculiar likes and fancies of customers are protectable).

[8] Lanham Act 1(b) (registration for intent to use in future).