PrepTest 126

Topic: Legal

Paragraph 1

• Paragraph note
  • Problem (employee leaving to work for a competitor), courts' approach (employee can work but can't reveal trade secrets), and the author's view (bad for employee and doesn't protect IP)
• Views, minor Meta-Structures, and the author's attitude
  • List of two principles when an employee leaves a company to work for a competitor:
    • The company's right to its intellectual property and trade secrets (second sentence)
    • The employee's right to seek employment and use their skills (second sentence)
  • Courts' view:
    • Can preserve both parties' rights by allowing the employee to work for the competitor and preventing them from sharing the original employer's secrets (third sentence)
  • Author's view:
    • The courts' approach makes people suspicious of the new employee, so it doesn't promote the employee's right to employment (fourth sentence)
    • The courts' approach doesn't protect secrets either (last sentence)
  • Author's attitude: "appear irreconcilable" (second sentence); "help generate suspicion and similar psychological barriers" (fourth sentence); "hardly effective" (fourth sentence); "also doubtful" (last sentence)

Paragraph 2

• Paragraph note
  • Author's issues with courts' injunction against revealing trade secrets (impossible to forget info from first company; all non-public info considered corporate property)
• Views, minor Meta-Structures, and the author's attitude
  • Author's view:
    • A person can't give up expertise gained in former employment, and any information they gained that isn't public knowledge is corporate property of former employer (first through last sentence)
  • Author's attitude: "obviously impossible" (first sentence); "Nor, in general, can one selectively refrain from its use" (second sentence); "integral part" (second sentence); "almost any" (last sentence); "may legitimately be claimed" (last sentence)

Paragraph 3

• Paragraph note
  • More issues with courts' injunction against trade secrets (often used subconsciously and hard to distinguish from the employee's or new employer's own knowledge)
• Views, minor Meta-Structures, and the author's attitude
  • Comparisons, according to the author:
    • While some employees use trade secrets in a clear and deliberate way, it's far more likely that they'll use secrets without realizing it (first through third sentences)
    • Injunctions aim to stop both, but the latter is essentially impossible to prove (fourth and fifth sentences)
    • Suspicious activity and legitimate technical skills will look very similar to outside parties (sixth sentence)
  • Example of a trade secret that might be used inadvertently, according to the author:
    • Daily decisions/small contributions, often an intuitive sense of what to do or avoid (third sentence)
  • Author's view:
    • Injunctions don't really fully protect former employers, except in the passing on physical items (last sentence)
  • Author's attitude: "may manifest themselves clearly and consciously" (second sentence); "far more likely" (third sentence); "little will usually be apparent" (fifth sentence); "further problem" (sixth sentence); "may be legitimately" (sixth sentence); "major stumbling block" (seventh sentence); "unlikely" (last sentence); "except for" (last sentence)

Main Point: While courts have tried to protect employers' intellectual property using injunctions, they place a psychological toll on the worker and don't actually protect trade secrets.

Criticizing a Viewpoint: This passage most closely fits the Criticizing a Viewpoint Meta-Structure.* In such a passage, the author describes a view held by another person or group and then criticizes their view. Importantly, the author's argument should focus primarily on why the view is wrong, unjustified, or misguided. (If the author offers an alternative approach, then the passage may be better described as an Old Approach/New Approach passage. If the author focuses on a misconception/oversight and corrects that misconception/oversight, the passage may be better described as a Correcting the Record passage.)

That fits this passage, as the author spends nearly the entire passage criticizing the courts' attempt to protect employers' rights to their intellectual property and employees' rights to employment when an employee leaves one company to work for a competitor. The author agrees that this approach doesn't promote the employees' right to employment, as the employee will viewed suspiciously in their new job. The author also argues that this approach doesn't actually protect the old employer's intellectual property, as employees can't forget what they learned at the old job, but it's nearly impossible to prove that the knowledge they acquired at the old job influenced them at the new job.

In a Criticizing a Viewpoitn passage, the main point is usually the author's central criticism or a summary of their criticism. To identify this main point, we can look for whether the author provides a conclusion that summarizes their criticisms. In this passage, the author provides this conclusion at the end of the first paragraph. We can use that sentence to assess the answer choices on questions that require us to consult the main point. Alternatively, we can summarize the author's criticisms ourselves, as we did for our anticipated main point.

*That said, there are a few other Meta-Structures that could work for this passage. If we think of the "two basic principles" that "appear irreconcilable" when a senior employee leaves one company for another as a paradox, we could consider this a Paradox/Resolution passage. The courts' attempt to resolve this paradox is the resolution. (Although the main point will be the author's opinion that this resolution fails to actually resolve the two discrepant principles.) Similarly, you could think of this as a Problem/Solution passage, with the courts' attempt to promote both principles as the solution. (Again, the main point will be the author's opinion that this solution fails to solve much of anything.)

Comparisons: The author makes comparisons throughout the third paragraph, making the comparison the passage's most prominent minor Meta-Structure. Specifically, the author makes two distinctions, both highlighting an issue with enforcing an injunction against sharing trade secrets. The first is the distinction between the intentional sharing of a former employer's secrets versus the subconscious and inconspicuous sharing of those secrets (P3, S1-S3). The second is the distinction between a trade secret and information generated from technical skills independently learned (P3, S4-S5). These distinctions play into the author's argument that enforcement of injunctions is essentially impossible, which leads to the conclusion that these injunctions are ineffective.

This passage features a lot of the author's attitude and relatively few minor Meta-Structures. As such, expect most of the questions to come from the Major Point, Tone, or Argument Structure families. We probably won't get many Minor Point questions that ask about specific details — the Minor Point questions we do get probably won't ask about specific details and will instead require use to use our big-picture knowledge of the passage.