Something Borrowed, Something New: The Changing Role of Novelty in Idea Protection Law

Ideas that do not qualify for legal protection, it is well settled, are free to the world once they have been disclosed. Yet states vary considerably in the scope of, and prerequisites for, legal protection granted to ideas. Variations in state approaches to idea protection are well documented. The states most often highlighted for their contrasting approaches are New York and California. Idea protection doctrine in these two jurisdictions differs primarily in the role played by the concept of “novelty.” There is no one authoritative definition of novelty in this context; indeed, courts typically use the term without defining it. As this article discusses, the function of the novelty requirement is to establish that the idea has value and that the defendant actually used the plaintiff\u27s idea and benefited from it. The relevance of novelty in the contractual protection of ideas has been widely debated. Yet the leading novelty case in New Jersey, Flemming v. Ronson Corp., has received relatively little attention since it was decided in 1969. In Johnson v. Benjamin Moore & Co., the New Jersey Appellate Division demonstrated a willingness to adopt a stringent novelty standard. Due to a fortuitous turn of events, however, Johnson has since been remanded, and no longer represents controlling law. Hence, the New Jersey courts have an opportunity to reconsider the direction taken by Johnson, and carve out a more thoughtful approach to determining the validity of contracts for the use of ideas. This Article examines the significant changes in New York\u27s application of the novelty standard to idea protection contracts during the past decade and discusses the evolution of idea protection law in New Jersey. An evaluation of the New York and New Jersey case law reveals significant flaws in the arguments for treating novelty as an essential element of a contract for the use of an idea. Furthermore, it suggests that New Jersey should reconsider its most recent application of the novelty standard to idea protection contracts