Seven Reasons Why Trade Secrets Are Increasingly Important

Abstract

As technology reshapes the way we live and work, propelling the American economy toward one based on informational assets, trade secrets have never been more important. The ascent of the importance of trade secrets has unleashed an unprecedented boom in litigation, in legislation, and in media and scholarly attention. It has produced damages awards in the hundreds of millions of dollars, and prompted federal authorities to pursue aggressive criminal investigations. The author, an experienced trade secrets litigator, identifies seven factors behind this phenomenon: (1) digital technology; (2) a mobile workforce; (3) the rising value of intellectual property, of which trade secrets are a part; (4) the widespread adoption of the Uniform Trade Secrets Act; (5) trade secrets’ flexible definition; (6) an increase in international threats; and (7) the shifting calculus between whether to pursue patent or trade secret protection. Whether each of these factors will continue to fuel trade secret growth remains uncertain; societal norms fluctuate, political winds shift. But taken together, these seven trends suggest that the business of trade secrets will only assume greater importance in the years ahead. © 2012 David S. Almeling. † David S. Almeling is a Counsel at O’Melveny & Myers LLP in the firm’s San Francisco office. The opinions expressed in this article do not necessarily reflect the views of O’Melveny or its clients, and it should not be relied upon as legal advice. 1091_1118_ALMELING_WEB_110612 (DO NOT DELETE) 11/6/2012 5:27 PM 1092 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:1091