Houston [1st Dist.] 1988) (applying the Restatement ’s definition of trade secret). In accordance with common law rights, and where no statute abrogates such rights, the creator of a device has the right to make, use, and sell it. See G. Rich, The Relation Between Patent Practices and the Anti-Monopoly Laws (Part II), 24 J.P.O.S. 159, 166-68 (1942). The common law does not provide the right to exclude others, see Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 35-36, 43 S.Ct. 254, 256-57, 67 L.Ed. 516 (1923), and absent the right to exclude that is granted by the patent statute, an inventor’s recourse to the common law requires that the invention meet the criteria of secrecy as appropriate to the circumstances. See 1 R. Milgrim, Milgrim on Trade Secrets, § 2.01 (1987) (<HOLDING>). The foundation of trade secret law is
recognizing difficulty in proving conspiracy recognizing difficulty of formulating concise rules of trade secrecy holding error was structural because of the difficulty of assessing the effect of the error recognizing privilege under federal rules recognizing difficulty of evaluating judges demeanor upon appellate review