Searching for the Secrets of a Stradivarius

By James Pooley
January 21, 2018

Stradivari violin: Secrets of Cremona

Cremona, Italy. November 14, 2014. Stradivari violin.

When the auctioneer’s hammer went down, the violin sold for almost $16 million. It was one of the masterpieces of Cremona, the small northern Italian town that was the 18th-century center of violin-making. Ever since, the world’s best violinists have insisted that instruments made by Antonio Stradivari and his colleagues demonstrate a uniquely wide dynamic range and subtle tonal quality. So why can’t we make them like that now? Nobody really knows.

To begin with, the masters left no instructions. Some critics of trade secret law have cited Cremona as an example of progress “lost” because it was buried instead of published through a patent application. There are several reasons why that argument fails, but for today let’s consider the possibility that the violin makers couldn’t have passed on their secrets if they wanted to, simply because they didn’t know what made their violins sound so good.

Maybe they thought it was just their extraordinary skill. Stradivari, who worked until he was 92 and is credited with creating over 1,100 instruments, was not shy about promoting both his talents and his violins to royal buyers. His friend Guarneri was almost as commercially successful, and the Cremona luthiers as a group did nothing to dispel everyone’s assumption that the beautiful sounds were a product of nothing more than their superior individual craftsmanship. In any event, it was the result that mattered, even if no one could say what produced it.

Within the last century, as the remaining instruments were collected and prices began soaring, the search was on to re-discover the secrets of Cremona. For years, many credited the varnish. Recently, scientists discovered a particular bacterium had infested logs floating down river from the alpine forests, munching away enough of the interior of each cell to create an unusual resonance when the wood was dried and fashioned into a violin body.

So can you have a trade secret just because it produces results, if you don’t know how it works? The answer is yes; the law doesn’t require that you fully understand the mechanism that generates the effect. This is a good thing, since otherwise we might spend an inordinate amount of time peeling back the onion layers of causation in the search for the “ultimate” explanation.

In medicine, we long have used natural materials or drugs that are correlated with improvement or cure without knowing exactly how they work. Even when we think we know it, the human body’s systems, being almost infinitely complex and interdependent, laugh at us.

That doesn’t mean that the search for causation is a fool’s errand. Frequently, in trying to understand how we get good outcomes, we stumble on a related discovery that proves very helpful. This is what happened with the Cremona violins. On the heels of the revelation about cellulose-eating bacteria, researchers identified two types of fungus that perform roughly the same feat, after the fact. Applied to existing violins of lesser quality, these fungi do just enough of the right kind of damage to help the instruments approach the sublime quality of a Stradivarius.

A child, by trial and error, learns to ride a bike, but ask her how she does it and she can’t really explain. It has something to do with balance, but what is that? How many adjustments per second does she have to make? What role does speed play? (If you’re thinking none, then just compete with other family members to see who can ride the slowest without falling over.)

Machine learning, a kind of artificial intelligence, allows us to recognize patterns and establish correlations but not necessarily causation. Instead, multiple variables breed multiple hypotheses, and these become multiple opportunities for mining useful insights. A pattern extracted from big data can be applied by itself to improve the functioning of some systems, but it can also point us toward deeper understanding and even greater advantage. Discovering a secret often begs many questions, and leads to the discovery of more.

One lesson is that, when it comes to outputs, the assumptions we make about causation can sometimes mislead us, preventing us from using information about the phenomenon to developing new innovations. While we don’t have to know how our valuable trade secrets work, it usually pays to keep looking while we’re exploiting the advantages they provide. In fact, there may be some nuggets waiting to be uncovered by reverse engineering the good results produced by others. That is one of the ways that secrecy incentivizes innovation every bit as well as patenting.

We can enjoy the music at the same time that we try to understand how it’s made and why it moves us.

The Author

James Pooley

James Pooley is a former Deputy Director of the World Intellectual Property Organization (WIPO). Having returned to Silicon Valley, Mr. Pooley established a private law practice where he specializes in high-level litigation counseling and strategy.

For more than 35 years, Jim has represented clients as lead trial counsel and strategic advisor in high-stakes patent and trade secret disputes. His broad litigation experience, combined with his service as an international diplomat and business executive, make him uniquely qualified to handle today’s global IP challenges. Jim testified before the Senate Judiciary Committee on the Defend Trade Secrets Act, and has worked with congressional staff on the legislation. His most recent book is Secrets: Managing Information Assets in the Age of Cyberespionage, available here.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 17 Comments comments. Join the discussion.

  1. Anon January 21, 2018 4:16 pm

    There are several reasons why that argument fails, but for today let’s consider the possibility that the violin makers couldn’t have passed on their secrets if they wanted to, simply because they didn’t know what made their violins sound so good.

    You lost me right there as I stopped reading at the audacity of such bollocks.

  2. Night Writer January 22, 2018 10:36 am

    @1 Anon: I know. Sounds like he is being paid by Google.

  3. Anon January 22, 2018 10:53 am

    One need not be paid by Google to want to advance “benefits” of Trade Secret practice (or to do so by attempting to minimize their deleterious effect, especially in regards to the ‘promotion’ aspects of patents.

    And by ‘promotion,’ I explicitly include the ‘other facet’ meaning of that word, the one that our Founding Fathers also included besides the notion of “advancing.” That other notion is the ‘advertising’ notion of spreading the word, something that Trade Secrets is diametrically “aligned” with, no matter what benefits may be said to acrue from Trade Secrets.

  4. Jim Pooley January 22, 2018 6:29 pm

    Thanks for your comments; I probably should have been more specific that there wasn’t space in this post to deal fully with the issue of whether the existence of trade secrecy discourages patenting. The Supreme Court in Kewanee (1974) said it didn’t, but that opinion wasn’t a paragon of great reasoning. That said, we’ve had the two systems operating side by side for a long time now, and I completely agree that secrecy “aligns” with the patent system, since it enables dissemination of technology that otherwise wouldn’t happen, and both approaches encourage innovation. Anyway, the point of the story was not about whether there is a collision between the two, and maybe I shouldn’t have mentioned that in passing. By the way, my views on the alignment of the two systems are laid out in an earlier post, http://www.ipwatchdog.com/2017/11/01/patents-and-trade-secrets-revisited/id=89641/
    Last thought: I am definitely NOT being paid by Google!

  5. Roger Heath January 22, 2018 6:58 pm

    Sorry Anon, night writer!

    If you had continued to read you would have learned that “scientists discovered a particular bacterium had infested logs floating down river from the alpine forests, munching away enough of the interior of each cell to create an unusual resonance when the wood was dried and fashioned into a violin body.”

    “researchers identified two types of fungus that perform roughly the same feat, after the fact. Applied to existing violins of lesser quality, these fungi do just enough of the right kind of damage to help the instruments approach the sublime quality of a Stradivarius.”

    I suppose you think the “Masters” knew about cellular decomposition.

    Rather, with no insight or information you slander the author. You can’t fix stupid.

  6. Anon January 22, 2018 8:39 pm

    Slander?

    You enjoy that Accuse Others thing, do you not, eh Mr. Heath.

    Knowing about any type of cellular decomposition has absolutely zero to do with the fact that Trade Secrets work opposite of patenting in the dissemination of knowledge, including “whatever” method that it WAS used by the masters that was lost.

    You think that a century or so later is perfectly fine in that we may have stumbled across the “real reason” that whatever the masters did worked so well – back then before that science was available?

    You are the one highlighting ignorance here.

  7. Roger Heath January 23, 2018 4:19 pm

    Anon,

    The statement you quoted was explained with material in the article that you were too offended to read? Even your quoted material had nothing to do with “dissemination of knowledge”. In fact it demonstrates how difficult disseminating knowledge is to the “Anon”.

    You had all of your conclusions with just the vapors of your own mind.

    Accusing him of being paid by Google is pretty low, and based on two paragraphs. Pathetic.

  8. Anon January 23, 2018 4:43 pm

    Mr. Heath,

    Please bother to actually read my comments and not mix them up with comments of others. To wit: I make NO accusation that Mr. Pooley is paid by Google.

    In fact, I rebut that statement (by Night Writer) by explicitly noting “One need not be paid by Google to want to advance “benefits” of Trade Secret practice (or to do so by attempting to minimize their deleterious effect, especially in regards to the ‘promotion’ aspects of patents.

    You continue to highlight your own ignorance.

    “Vapors of the mind” indeed – just not how you are attempting to use that denigration.

  9. Roger Heath January 25, 2018 6:27 pm

    Thank you for your reply “Anon”.

    I am honored that you actually read past the first sentence. Indeed I am ignorant, as opposed to your enlightenment. In fact I posses undisclosed “trade secrets” that would rock your world. Thus in my ignorance and poverty I constantly seek the most insightful and useful information that I can.

    So yes, I am messing with your brilliant little mind. I could insult your reading comprehension by pointing out that my initial reply was inclusive of the allegation by “night writer” of google involvement.

    My “Accusing him” statement did not include “You accusing him” and therefore a discerning mind would realize it was not even addressing yourself.

    “Vapors of the mind” is much more original than “Pulling it out of your a–” and more applicable I believe.

    Such prevarications are the heart and soul of all of this IP posturing. The victory going to the most accomplished orator. “Vapors of the mind” indeed!

    As for my IP, many suggest that IP such as mine should “serve the world” and I would agree. But by that same token a poor man such as myself giving over a life’s work predicated on relieving the sorrow of the children and the poor to a ravenous rabble is more than odiferous. That assumes that I can get something past the many forms of “confiscation” already in place.

    So – what have you made that was incredibly valuable that you just gave away, (besides you lip)?

    Respectfully,

    Roger

  10. Roger Heath January 25, 2018 6:31 pm

    “besides your”

  11. Anon January 25, 2018 6:37 pm

    Mr. Heath,

    “Inclusive” IS a mistake on your part. That was the point of my reply. If indeed you wanted to reply to more than one person, it is easy enough to so indicate. You did not do so. You would not be insulting my reading comprehension, but merely adding more insults upon yourself.

    You are embarrassing yourself in trying to defend your actions. The better path for you would be to admit your error and then discuss why you feel so strongly that Trade Secrets is a path that you have chosen.

    Please stop while you are behind.

  12. Roger Heath January 25, 2018 7:24 pm

    In the battle of the witless I am indeed no match for you.

  13. Roger Heath January 25, 2018 7:51 pm

    “Giving over a life’s work … … to a ravenous rabble is more than odiferous”.

    “That assumes that I can get something past the many forms of “confiscation” already in place.”

    Until I can find a way to preserve some value for the children and the poor or even assure that the IP is not suppressed it will remain a secret.

    I may have to disclose anyway, but if my health fails the question is moot – it goes with me because no one else has the skills or stomach for it. In the meantime I have refinements I haven’t pursued, but lame software is crippling and extensive care of a loved one is given a priority.

    As the inventor I am more interested in food in the mouths of children than a yacht on the Potomac. Without IP revenue, the children and the poor get crumbs from the table.

    Without IP, the “elite” engorge themselves and everyone else gets the trickle down. If I can put the gravy onto the plates of children and the poor, from my efforts and ownership, that is my greatest goal.

    So – what do you do (or is it a trade secret)?

  14. Roger Heath January 25, 2018 8:00 pm

    Destroying IP is not “killing the beast”. It is getting in bed with it.

  15. Anon January 26, 2018 7:34 am

    Mr. Heath,

    Your response @ 12 follows a model prevalent on “that other blog”: Accuse Others Of That Which You Represent.

    It does not work there.
    It certainly does not work here.

    Your error is quite evident. The more you struggle to blame others for your error, the worse YOU look.

    As I noted, the far better path for you would be to simply admit your error and move on.

    As to your moving on then…

    I think it wonderful that you have an altruistic purpose to your efforts.

    May I remind you though that such is simply not a requirement of partaking in – and benefiting from – the patent system?

    Quite in fact, I would suggest to you that you read some Adam Smith and see that (to co-opt the phrase from the movie Wall Street): Greed is Good.

    (I recommend that you listen to the Gordon Gekko Speech to the Teldar bloated board: https://www.youtube.com/watch?v=VVxYOQS6ggk )

    My anonymity is no “ooh secret” – and if you have been around this blog for any appreciable amount of time, you would not be going down that path.

    So – what do I do?

    I am a patent attorney and an active advocate for a STRONG patent system – including mind you, strength from both the carrot AND the stick approach. You want to have a Trade Secret? sure – that is a fully legal and viable (at times) path. But make no mistake – you keep something secret and someone else comes up – and is willing to share – and obtains a patent – you better believe that a STRONG patent system means that even you and your choice to keep something secret falls BELOW that property right of a granted patent and YOU can be blocked from the very thing that you may have come up with first but decided NOT to share.

    You have an admirable goal. Do not make the mistake to think that because your goal is admirable that all – and all law – must bend to your way.

    Having a patent brings with it – justifiably and EQUALLY as valid as your “put gravy on the plates of children and poor” other very different paths.

    Different paths that may include making an obscene amount of money and NOT sharing that money.

    Different paths that may include holding tight to one’s self and NOT letting anyone use your property for the entire length of the limited exclusive right – putting gravy on NO ONE’s plate, as it were.

    You want to be benevolent? Great. Do not make the mistake of thinking that such is required or necessary.

    It just is not so.

  16. Scott Lacey April 7, 2018 5:24 am

    I really enjoyed that discussion between you two guys roger and anon. And i learnt from the blog authors post too. I guess putting your discussion back on the story, the good thing is that the bacteria was discovered and possibly more amazing instruments to follow.
    The remainder of the division I’m guessing is related to the income generated from (an) IP.
    Strad is dead but the quality remains. *shrugs* nice discussion. ?

  17. Scott Lacey April 7, 2018 5:30 am

    Speaking of altruism, the $16 mill was raised at a charity auction for japanese disaster relief. I guess now my comment includes reference to use of (IP) income.

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