Trade Secrecy in Willy Wonka's Chocolate Factory

soon after th[e spying], Fickelgruber"s factory started making an ice cream that would never melt, even in the hottest sun. Then Mr. Prodnose"s factory came out with a chewing gum that never lost its flavor however much you chewed it. And then Mr. Slugworth"s factory began making candy balloons that you could blow up to huge sizes before you popped them with a pin and gobbled them up. 6 Unsurprisingly, Willy Wonka grew frustrated and feared financial ruin were his competitors to persevere in the thievery of his ideas. 7 As things stood, he would be investing his resources and energy to produce new types of candies and novel ways of making them, while his competitors would be reaping a good deal of his creativity"s sweet rewards, so to speak. Not content with that result, Wonka opted to cease all operations at his chocolate factory, by firing all of his employees, "shut[ting] the main gates and fasten[ing] them with a chain," and stopping the factory"s machines and chimneys. 8 With no chocolates or candies being made, Wonka disappeared from sight for months. 9 While Wonka was not applying his creative talents to making chocolate, he was using them to find a solution to his competitors" stealing. He located a tribe of Oompa-Loompas, tiny song-loving people from Loompaland. 10 The Oompa-Loompas loved cacao beans, a prime ingredient for chocolate, but hardly any of the beans were available in Loompaland. 11 Willy Wonka was therefore easily able to convince them to leave the dangerous jungles of Loompaland and come live in his candy land of a factory, working for him there in exchange for an unlimited supply of cacao beans and chocolate. 12 With the immigration of the Oompa-Loompas, Wonka was able to reopen his chocolate factory. He had found a way to get distinctive-looking laborers who would not leave the factory, which protected him in two ways from divulgence of information about his candy-making processes and products. First, as the Oompa-Loompas would be living at the factory and without access to outsiders, there would be little to no chance for them to reveal Wonka"s sweet nothings to his competitors. Second, because Wonka would not be letting in any employees other than the Oompa-Loompas and because they had a unique look, it had become exceptionally difficult, if not impossible, for Wonka"s competitors to sneak spies into the factory under the guise of employment. 6 Id. at 16. 7 Id. 8 Id. 9 Id. 10 Id. at 68-69, 80. In the original publication in the 1960s, the Oompa-Loompas were "depicted as Congolese pygmy slaves." JEREMY TREGLOWN, ROALD DAHL: A BIOGRAPHY 39, illus. 19 (1994). Following accusations in the 1970s that Dahl"s portrayal was racist, Dahl revised the book and the Oompa-Loompas were instead illustrated as "dwarfish hippies with long "golden-brown" hair and "rosy-white" skin." Id. at 39, 203, illus. 20. 11 DAHL, supra note 1, at 69-70.

Although Willy Wonka could now restart his factory"s machines and chimneys, producing delectable treats once more for mass consumption, it might seem remiss for him to throw open the factory"s main gate. But that is just what he did. Ten years after he recommenced factory operations, 13 Wonka announced a contest for five children to visit the factory (along with one or two family members 14 ) and get a lifetime"s supply of his candies. 15 To win, a child had to find one of five golden tickets hidden underneath the wrapping paper of a Wonka candy bar. 16 The contest piqued the world"s curiosity, not in small part because of the passion for Wonka"s candies, but also because, according to Grandpa Joe, "people are actually going to be allowed to go inside the factory." 17 There was interest in the factory"s innards, both to see the secretive candy-making and also to get a better sense of just how, without any employees going in and out, the candies and chocolates were being made. Because the public did not know that Wonka had brought Oompa-Loompas to work for him, people could not understand how the factory"s operations had been restarted. 18 The golden-ticket contest was an inspired marketing tactic, as Wonka candy bars flew off the shelves in response to worldwide interest in the chocolate factory. 19 And so five children-Augustus Gloop, a gluttonous boy; Veruca Salt, a spoiled, rich girl; Violet Beauregarde, a nonstop gum-chewer; Mike Teavee, an incessant television viewer enamored of gunfights; and Charlie Bucket, the poor and hungry title charactersuccessfully spent wildly divergent amounts of time and energy to secure a golden ticket. 20 The children"s tour of the factory revealed to them imaginative candy products and processes and mechanisms. The children start out in a chocolate room, "the nerve center of the whole factory, the heart of the whole business," with a "great brown river" of chocolate flowing both into a "tremendous waterfall" and glass pipes carrying away the chocolate mixed in the waterfall into a "light and frothy" state to other parts of the factory. 21 In the factory, the children see or learn of, among other things, Everlasting Gobstoppers, a candy that never gets smaller and changes color weekly; hair toffee, a candy producing on the consumer a full head of hair, a mustache, and a beard; a piece of chewing gum that, in the chewer"s mouth, feels like a meal with appetizer, entrée, and dessert; lickable wallpaper for nurseries; and edible marshmallow pillows. 22 The contest winners also experience some of Wonka"s mechanisms for keeping secret these products and the processes that make them. In addition to the Oompa-13 Id. at 18. 14 Id. at 51. 15 Id. at 19-20. 16 Id. at 20. 17 Id. at 19. 18 Id. at 14, 16-18. 19 Id. at 20. 20 Id. at 21-22, 24-25, 30-32, 32-34, 44. 21 Id. at 63-66. 22 Id. at 87-95, 104.

Loompas, Wonka built most of his factory underground, taking particular care to place the most important rooms there. 23 He justifies building downward to generate more space, 24 but it has the important benefit also of making it that much harder to observe the factory"s operations from the outside. Wonka keeps his factory rooms locked, as evidenced by the keys he produces to open up the rooms the children enter with him. 25 Finally, in addition to being locked, the door of the most vital room of the factorywhere inventing takes place-is labeled, "private-keep out." 26 Wonka acknowledges the room"s importance by remarking, "Old Fickelgruber would give his front teeth to be allowed inside just for three minutes! So would Prodnose and Slugworth and all the other rotten chocolate makers!" 27 In fact, the contest winners are the first people ever to enter the room, other than Wonka himself. 28 Although it is apparent that Willy Wonka would go to great extremes to guard his candy secrets from his competitors and his competitors to similar lengths to steal Wonka"s ideas, some aspects of the story are baffling from the vantage point of trying to understand how Willy Wonka and his competitors act. First, given the value of the information inside the chocolate factory to Wonka"s competitors, it is surprising that they did not try to win golden tickets to enter and spy in the chocolate factory. They could, in theory, have bought up hundreds of thousands of candy bars just as Mr. Salt did to indulge his daughter, Veruca, 29 to maximize their chances of winning a ticket worth its credential in gold.

Second, it is surprising to see that Wonka put little to no restriction both on who could win the contest and on what the winners could see inside the factory and do with that information after they left. Even though Wonka assumes that only children would win golden tickets, it was theoretically possible under the terms of the golden ticket for a competitor to enter the factory. Even if no competitor were to secure a golden ticket, Wonka left himself vulnerable to the contest winners cashing in on their valuable tour by divulging their experiences inside the chocolate factory to friends, strangers, Wonka"s competitors, or the media, something Wonka did not forbid. Perhaps Wonka-otherwise quite paranoid and obsessed with maintaining a veil of secrecy over his factory-was distracted by his true purpose for the contest, revealed toward the end of the story. After the four winners other than Charlie get themselves in varied forms of trouble at the factory based on their particular personality quirks, 30 Wonka names Charlie the true 23 Id. at 62. 24 Id. 25 Id. at 63 (chocolate room); id. at 87 (inventing room); id. at 106-07 (room for square candies that look round). 26 Id. at 87. 27 Id. 28 Id. 29 Id. at 24. 30 Augustus Gloop drinks from the chocolate river in the chocolate room and is carried away by one of the glass pipes. Id. at 72-80. Violet Beauregarde cannot resist chomping the chewing-gum meal before the invention is sufficiently refined and turns into a giant blueberry. Id. at 96-99. Veruca Salt is thrown down a garbage chute by squirrels after she tries to grab one to keep. Id. at 112-13. And Mike Teavee sends himself in tiny pieces through the air into a television and is then reassembled into a shrunken version of himself. Id. at 129-37.

winner of the contest and gifts the chocolate factory to him. 31 The true purpose of the contest, according to Wonka, was to find a winning child to take over the factory when that child would get older. 32 Wonka wanted to turn over the factory to a child so he could share his candy-making secrets with someone who would listen to him-as compared with an adult who might not-and have the factory continue operations long after Wonka is gone. 33 The intimation, of course, is that Wonka would pass on his candy-making secrets to Charlie, who would maintain their confidentiality so as to carry on Wonka"s thriving operations. The secrets, then, would endure, outliving Wonka. Roald Dahl"s story of whimsical candy-making and cutthroat competition is not pure fantasy, but is grounded in real-life events. Dahl seemed to have a sweet tooth dating to his childhood. At the age of nine, he and his friends would loiter at a local sweet shop and spend their pocket money on treats like liquorice bootlaces, "a flat black tape about half an inch wide," and gobstoppers, a sucking candy lasting for about an hour that would change color every five minutes. 34 Dahl clearly drew inspiration from these and other candies in filling in the details of Charlie and the Chocolate Factory. For example, he merely extended the gobstoppers of his childhood to become everlasting in his novel. 35 In what may have triggered some of the intricate and whimsical ways for making candies in Charlie and the Chocolate Factory, Dahl"s friend told everyone that the liquorice bootlaces were made from rats" blood extracted in an elaborate way from tens of thousands of dead rats and that eating the bootlaces would cause ratitis, an incurable condition of getting sharp, pointed teeth and a stumpy tail. 36 When Dahl was a teenager studying at boarding school in England, he and his fellow students would periodically receive individual packages from Cadbury, the chocolate company, containing twelve different types of chocolate bars. 37 Eleven of them were new types of chocolate bars and one was an existing chocolate bar to serve as a control. 38 Along with the chocolates, the boys would receive a sheet to rank each of the chocolate bars and provide comments. 39 It was at this point that Dahl realized that "the large chocolate companies actually did possess inventing rooms and they took their inventing very seriously," and he would daydream about inventing a great new type of chocolate bar. 40 Dahl pinpoints this experience as the seed from which he grew Charlie and the Chocolate Factory. 41 Dahl"s experience with Cadbury was situated more broadly in a hypercompetitive chocolate industry in England, which may very well have motivated the details of spying 31 Id. at 142, 150-51. 32 Id. at 151. 33 Id. at 151. 34 ROALD DAHL, BOY: TALES OF CHILDHOOD 28-31 (1984). 35 DAHL, supra note 1, at 88-90. 36 DAHL, supra note 34, at 29-30. 37 Id. at 133. 38 Id. 39 Id. 40 Id. at 134-35 (describing his vision of such a laboratory). 41 Id. at 135. in Dahl"s novel. Joël Glenn Brenner, who has written about the contemporary business of chocolate in the United States, indicates that the two top chocolate companies in England at the time of Dahl"s writings, "[t]he Cadburys and Rowntrees[,] sent so many moles to work in each other"s factories that their spying became legendary." 42 Because spying had become so extensive, according to Brenner, these and other candy companies in Europe "began hiring detective agencies to investigate their employees. Sensitive manufacturing processes were designated off-limited to all but the most loyal workers. And businesses that dealt with candy makers were forced to sign confidentiality agreements." 43 Spying and extreme secrecy seem not to be merely a relic of early twentiethcentury British candy-making, but endemic to the business historically and currently. In the sixteenth century, the explorer Hernán Cortés returned to Spain from Mexico with some cacao beans and an Aztec recipe for chocolatl, a bitter drink made from the beans, which was said to build its drinker"s resistance and protect him from fatigue. 44 Because of its new flavor and desirable qualities, the Spanish leadership had its resident monks guard and refine the chocolatl recipe to make it less bitter. 45 By entrusting the recipe to its cloistered monks, Spain was able to keep others from learning of a drink it thought to be valuable, thereby maintaining a competitive edge. The monks managed to keep the recipe a secret from the rest of Europe for over one hundred years. 46 In present-day United States, candy companies are no less secretive. Generally, to protect candy innovations, recipes are shielded in alarmed safes and shared in a company only if absolutely necessary, so that workers cannot easily reveal them to competitors. 47 Companies will not even disclose how many cacao beans they buy, regarding that as a proprietary secret. 48 The two biggest candy companies, Mars and Hershey, illustrate the lengths of secrecy to which these companies will go. Mars, the maker of M&M"s, Snickers, Twix, and Starburst, is so guarded that it has no company representative for outsiders to contact. 49 The company will not answer who the president of the privately held company is when a member of the public calls the company to ask. 50 To prevent anyone from learning about its candy-making process, Mars designs, makes, and operates all of its factory machines itself. 51 The few outsiders Mars has allowed into its factories must sign 42 JOËL GLENN BRENNER, THE EMPERORS OF CHOCOLATE: INSIDE THE SECRET WORLD OF HERSHEY AND MARS 61, 65 (1999). 43 Id. at 61-62. 44 Id. at 92-93. 45 Id. at 93. 46 Id. This interval exceeds the current patent term of approximately twenty years, see 35 U.S.C. § 154, and possibly also surpasses present copyright protection for the author"s lifetime plus seventy years, see 17 U.S.C. § 302(a), indicating that secrecy would likely have been preferable to those forms of intellectualproperty protection. 47 Id. at 27. 48 Id. at 238. 49 Id. at ix. 50 Id. at 21. 51 Id. at 28. prohibitive confidentiality agreements. 52 In fact, it has a policy of blindfolding outside contractors coming in to make repairs at the factory so they can see only the area where the repairs are to be done. 53 Mars is so secretive about the special cacao bean at the base of its Dove bar that the bean has no official name and is not directly mentioned in company records; only a small select number of executives know the bean"s origins. 54 Hershey-maker most popularly of Hershey and Kit Kat bars and Reese"s Peanut Butter Cups-is similarly furtive, despite the fact that it is publicly traded. 55 When in 1990, Hershey made a Desert Bar for the U.S. military in the Persian Gulf-a chocolate that "tasted just like an original Hershey bar but could withstand temperatures up to 140 degrees Fahrenheit"-the heads of the company refused to explain the decades-in-themaking technology that created the bar. 56 Even the method of making an original Hershey bar is kept under wraps. As former CEO Richard Zimmerman explains, "Anyone can read the ingredients on a Hershey bar …. But to actually make a Hershey bar, you have to know a lot more than that," like how to process milk, which types of cocoa beans to use, and how long to mix the chocolate, information which is not publicly disclosed. 57 Not a single Hershey employee knows the exact proportions of ingredients to mix to create the different chocolate bars. 58 Instead, that information is locked away in a computer. 59 Company information-even about sales and profits-has been so hard to come by to employees, making it extraordinarily hard to do internal marketing. 60 And as with Mars, very few outsiders can come into the factory"s main areas. 61 Just as in Dahl"s concocted world of competition between Wonka, Fickelgruber, Prodnose, and Slugworth, the motivation for so much secrecy is the constant attempts at and occasional successes of spying and thievery of ideas. For instance, to learn how to make chocolate properly, Forrest Mars, Sr., the driving force behind the Mars empire that his father began, spent time in the 1930s working in Switzerland at the factories of Jean Tobler (originator of the Toblerone bar) and Henri Nestlé (inventor of milk chocolate). 62 To do this, Mars posed as a regular factory worker without revealing his true place in the world of chocolate. 63 In turn, it would seem, years later, Mars"s European operations were infiltrated by other European manufacturers. 64 52 Id. 53 Id. 54 Id. at 121. 55 Id. at ix (justifying its secrecy based on its competition with Mars, which is so secretive). 56 Id. at 10. In fact, a black market had developed to trade information about a predecessor invention in a Swiss laboratory for a tasty chocolate that would not melt at 100 degrees Fahrenheit, with Mars and Hershey very interested in developing a similar chocolate. Id. at 11-13. 57 Id. at 27. 58 Id. at 121. 59 Id. 60 Id. at 215. 61 Id. at 62. 62 Id. at 60-61. 63 Id. at 61. 64 Id. at 62-63.

It appears that each candy company has stolen something from another at some point in time. Mars stole the idea for its Bounty bar, a chocolate bar with a coconut filling, from Peter Paul Candies. 65 After the Heath company refused to sell Hershey its recipe for the Heath bar, Hershey bought one for its Skor bar, butter toffee covered in milk chocolate, from a Norwegian candy maker that had copied its recipe from the Heath bar. 66 Mars and other candy companies are known for trying to extract information about competing candy products from candy suppliers, brokers, and buyers. 67 And the companies would recruit their competitors" employees, including top-level ones, as Hershey did when it hired Mars"s heads of marketing and sales in 1968, 68 prime sources of proprietary information. 69 In many industries, when there is the possibility of competitors stealing a company"s innovations, the company relies on patents or copyrights to protect itself. But this is not the modus operandi of the candy industry. Willy Wonka would likely have satisfied today"s patentability standards of novelty, nonobviousness, and utility 70 for many of his candy-making processes-like the gigantic and complicated machine that would produce the chewing-gum meal with appetizer, entrée, and dessert 71 -and resulting products-such as his non-melting ice cream and chewing gum that does not lose its taste. 72 There is, nonetheless, nary a mention of patent (or copyright) law in Dahl"s story. Althhough that, of course, might be attributable to Charlie and the Chocolate Factory being a children"s fantasy, not a legal brief, things are not much different in the real-world candy industry. As one pertinent example, Forrest Mars would never seek patents on the machinery his company would initiate, improve, and adapt. 73 Getting a patent would mean disclosing to the public the innovation, 74 something Mars, like other candy makers, was loath to do because of the help it would give his 65 Id. at 25 ("Given the finite number of available ingredients, the limited understanding of science and manufacturing and the relatively narrow range of consumers" candy preferences, it made perfect business sense to borrow hot-selling products from the competition, alter them slightly and resell them as one"s own."). 66 Id. at 25-26 (listing also many more examples of such copying). 67 Id. at 62. 68 Id. at 220. 69 At some points in their histories, Mars and Hershey engaged in a rare collaboration to produce M&M"s. Id. at 47 (noting that one "M" stood for R. Bruce Murrie, the son of Hershey"s president at the time, and the other for Mars). The companies agreed that Mars would contribute eighty percent of the capital and Murrie"s son the other twenty percent, and Hershey sent machinery to Mars to make the M&M"s. Id. at 48, 151. Perhaps the explanation for this collaboration in the face of the usual tough competition was that, at the time, Hershey was supplying Mars with chocolate for the M&M"s, id. at 58, meaning it was in both companies" interest to see M&M"s succeed. 70 competitors. 75 Moreover, protection would last only for approximately two decades, while a secret might be eternally durable if properly protected. 76 Nor is copyright a sought-after form of protection in the candy industry.

Copyrights are likely proper for some aspects of the business, namely, "substantial literary expression-a description, explanation, or illustration, for example-that accompanies a recipe or … a combination of recipes, as in a cookbook." 77 Copyright protection, however, subsists in the particular expression and prohibits only substantially similar expression. 78 The idea underlying a recipe-that is, the food itself-can be freely made despite copyright protection. Therefore, copyrighting the recipes for a candy company"s products is unlikely to leave the company sated that it is protected against copiers. Moreover, despite some academic argument to the contrary, copyright protection is not currently recognized for food products themselves. 79 Although copyright protection is likely available for certain aspects of what the candy industry does, its downsides guarantee that it will not be invoked much.

Because copyright and patent laws are unsatisfying or unavailable ways to protect the central innovations in the candy industry, the industry and Dahl"s depiction of it have turned to secrecy to protect their processes and products. Unlike copyright and patent, which protect only for a limited time, so long as a secret remains unrevealed, its cloak is everlasting. 80 Of course, the information comprising the secret might always be properly revealed through independent discovery or reverse engineering of an available product. 81 But information is shielded by the law as a trade secret from certain types of misappropriation if the underlying information "derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons" and is "the subject of efforts that are reasonable under the circumstances to maintain its secrecy." 82 Information about a 75 BRENNER, supra note 42, at 183. Mars, though, will secure design patents to protect the look of their candy bars. See, e.g., U.S. Pat. No. D565,827S (issued Apr. 8, 2008). The information in a design patent about a candy bar"s look does not give Mars"s competitors any information they would not otherwise have from buying the candy bar at a store, so there is little downside to Mars in securing design patents. 76 See 35 U.S.C. § 154(a). Mars will secure patents from time to time on machinery that will be in public view, such as vending machines, U.S. Pat. No. 5,831,862 (issued Nov. 3, 1998), and occasionally even for peripheral chocolate products, such as a cocoa extract and a method of making it to prevent and treat cancer, U.S. Pat. No. 5,554,645 (issued Sept. 10, 1996). 77 U.S. Copyright Office-Recipes, http://www.copyright.gov/fls/fl122.html (last visited Jan. 18, 2011). 78 company"s process for making particular candies and about future candy products undoubtedly meets the first requirement, by giving the company an advantage over its competitors if the information is kept secret.

Secrecy need not be absolute to meet the second requirement, particularly as companies can share information with employees or outsiders so that they can make the most of the information commercially, so long as they protect against unauthorized uses. 83 The Uniform Trade Secrets Act explains that "reasonable efforts to maintain secrecy have been held to include advising employees of the existence of a trade secret, limiting access to a trade secret on "need to know basis," and controlling plant access. On the other hand, public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection." 84 Distilled, it is understood that efforts are reasonable if they "(1) control access to the secret; (2) do not disseminate the secret more widely than necessary; (3) do not give access to individuals who fail to hold the information in confidence; and (4) establish, update and follow security guidelines for keeping it safe." 85 There are a number of justifications proffered for the reasonable-efforts requirement. For one thing, it ensures that legal protection is granted only to those who value and treat the information as secret. 86 Relatedly, the efforts broadcast a message to both outsiders and insiders that the protected information ought not to be taken wrongfully, frequently also helping the information holder detect misappropriations. 87 And by imposing this requirement on the company holding the information, the expended efforts will prevent many potential episodes of misappropriation. 88 The requirement also encourages companies not to over-invest in keeping secrets or to behave impracticably, as efforts need only be reasonable. 89 For example, in a case in which the defendant flew an airplane over the plaintiff"s chemical plant under construction to obtain otherwise proprietary information, the Fifth Circuit found that the plaintiff had undertaken reasonable efforts toward secrecy, even though it theoretically could have spent much money building a temporary roof over the construction. 90 The law thus encourages a company constructing a plant not to undertake the expense of a temporary roof by providing trade secrecy protection without it. 91 Quite interesting, then, about the depiction of Willy Wonka"s operations and its real-world analogues is that some of the secrecy measures taken are extreme, apparently well beyond that which is reasonable. 92 Although it seemed quite reasonable to lock and mark as private important rooms in his chocolate factory and perhaps to build underground to conceal any public view, Wonka seemed to go well beyond that by firing all of his employees and hiring Oompa-Loompas, keeping the factory gates shuttered all of the time. 93 Also appearing excessive are Mars"s practices of having no company representative and designing and producing all of its own machines for purposes of secrecy, especially if Mars is not the most efficient designer of these machines. Hershey"s efforts at protecting secrecy, such as by not revealing its production methods, seem reasonable in comparison, although probably not with regard to the difficulty of getting information internally to help build the business.

Given that legal protection is available for misappropriation of trade secrets, which the candy companies" production methods and future product ideas would appear to be, why do companies in this industry seem to be going above and beyond what the law requires for protection by over-investing in secrecy? Some of the personalities behind these fictional and real companies, Willy Wonka and the Mars family in particular, are sufficiently eccentric and paranoid that perhaps they value secrecy at all costs. Relatedly, it might be the case that the candy companies are far from indifferent between the legal remedies for trade secrecy misappropriations 94 and avoiding an actual misappropriation in the first instance, in that they are of the opinion that the former under-compensate for misappropriation. Perhaps the sentiment is that once the Kit Kat is out of the bag, the ballgame is over. 95 There is also always the risk that legal recovery is too unpredictable, given gray areas in the law of trade secrets. Moreover, perhaps the time and energy to be spent on litigation are considered too costly. Alternatively, maybe it is wrong to consider the industry"s efforts at secrecy as going beyond that which is reasonable, given the extravagant and persistent attempts of thievery in the industry. This industry"s practices-as per Dahl"s colorful depiction of Wonka and his competitors in Charlie and the Chocolate Factory and the ways of their factual counterparts-provide some brain candy for trying to understand the role and operation of trade secrecy. They raise central questions about trade secrecy. When, if ever, will companies draw the line of efforts to protect secrecy at that which is reasonable, without over-investing? Is the legal protection of trade secrecy desirable or is there a strong preference instead for deterring any actual misappropriations through perhaps extreme efforts of protecting important information? Perhaps in certain industries, like candy, trade secrecy acts typically as a fail-safe should extravagant attempts at secrecy somehow fall short. 92 Given the degree of secrecy in the candy industry, it is perhaps unsurprising that the earliest reported American case on misappropriation of trade secrets involved a method for making chocolate. See Vickery v. Welch, 36 Mass. 523 (1837). 93 That said, Wonka possibly saved money by taking this measure, given that he was paying the Oompa-Loompas in cacao beans and chocolate instead of paying cash to his previous employees. 94 Possible remedies for misappropriation of a trade secret include criminal penalties, injunctive relief, and damages. Lemley, supra note 89, at 319. 95 Cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004).

The tale of the candy industry also seems to serve as a counterexample to key assumptions made by the Supreme Court on when the availability of trade secrecy protection provides an incentive to innovate in the first instance. 96 In holding that patent laws do not preempt state laws on trade secrecy, the Supreme Court assumed that trade secrecy is a far weaker form of protection than patent law when both might be invoked. 97 Reasoning that trade secrets are at risk of honest discovery and failed lawsuits even when misappropriated, the Supreme Court stated that "[t]he possibility that an inventor who believes his invention meets the standards of patentability will sit back, rely on trade secret law, and … forfeit any right to patent protection is indeed." 98 Based on that assumption, the Supreme Court concluded that there is no sufficient conflict between states" laws of trade secrecy and federal patent law. 99 Counter to the Court"s assumption, many of the innovations of the fictional Willy Wonka and the factual Mars and Hershey appear to be patentable, yet their creators opt for secrecy on the basis that its protection will outlast the term of patent protection. If the candy industry"s practices are sufficiently widespread, the law ought to recalibrate patent and trade secrecy law by considering both how much trade secrecy laws provide an incentive to invent patentable, but unpatented, inventions and how concerned to be with a flight from the disclosure of innovations that patent law requires to secrecy. 96