Trade Secret Misappropriation Research Articles

Lost Profits and Unjust-Enrichment Damages for the Misappropriation of Trade Secrets

Lost Profits and Unjust-Enrichment Damages for the Misappropriation of Trade Secrets

Misappropriation of Trade Secrets Under the Indian Legal Framework: An Analytical Study

The main purpose of this paper is to examine the aspects of the misappropriation of trade secrets under the Indian legal framework, and how this can be prevented. The paper also tries to understand the nature of trade secrets, the reasons for protecting them, and the practical challenges in identifying and protecting them as there is no legal framework in India to protect trade secrets from misappropriation. The paper concludes by highlighting the challenges to the Indian legal framework, in handling and protecting the misappropriation of trade secrets.

Data Misappropriation

Data scraping (also called web scraping, screen scraping, or web crawling) is a technique that uses “bots” to automate the collection of information from publicly available websites. Fundamentally, data scraping is data copying. Intellectual property (“IP”) law—namely, copyright—typically handles disputes involving copying. However, copyright law largely fails to protect data and databases (i.e., compilations of data). Instead, plaintiff websites assert contract law, Computer Fraud and Abuse Act (“CFAA”), and state unfair competition law (common law misappropriation, unjust enrichment, conversion, and trespass to chattel) claims against data scrapers. This Note proceeds as follows. First, this Note examines how scrapers can be liable under trade secret law for scraping data from publicly accessible websites. Initially, trade secret law seems incongruous with data scraping because the core concept of trade secret law—secrecy—is seemingly at odds with public accessibility. If a website is publicly available, how can a scraper be liable for trade secret misappropriation of the website’s data? This Note explains how a recent Eleventh Circuit case, Compulife Software Inc. v. Newman, laid the groundwork for a trade secret cause of action. This Note reconciles Compulife with existing trade secret jurisprudence, argues that Compulife was rightly decided as a matter of both law and policy, and provides a roadmap for courts to apply trade secret law to data scraping cases. Second, this Note explains why courts and litigators should use trade secret law to adjudicate data scraping disputes. Specifically, this Note argues that, compared to the existing alternatives, trade secret law is best suited to handle the various policy issues surrounding data scraping. This Note explains how contract law and the CFAA have filled the database void left by copyright law: contract law and the CFAA have become “quasi-IP” regimes, granting websites property rights in databases otherwise unprotected by copyright law. In response to the emergence of quasi-IP, this Note argues for reconceptualizing the data scraping problem by reframing data scraping as data copying—reframing data scraping with an intellectual property lens. Trade secret law offers a framework for that reconceptualization. In contrast to contract law and the CFAA (an anti-hacking law premised on criminal trespass principles), trade secret law provides courts and litigators with the appropriate IP-based doctrinal levers to analyze data scraping cases. Finally, this Note analyzes how EU law filled the database gap by creating an IP right, the sui generis database right. This Note argues that Compulife’s trade secret theory emulates many aspects of the EU sui generis database right. In this sense, Compulife’s trade secret theory can be seen as the United States’ attempt to fashion its own sui generis database right to fill the database gap left by copyright.

Metal 3D printing: Patent law, trade secrets, and additive manufacturing.

There has been significant investment in research and development in respect of metal 3D printing in the United States (as well as a number of other jurisdictions). There has been growing conflict over the ownership of intellectual property in respect of metal 3D printing (involving not only patents but also trade secrets and confidential information, as well as contract law and unfair competition). In 2018, Desktop Metal Inc. launched litigation against Markforged Inc. and Matiu Parangi in relation to intellectual property and metal 3D printing in the United States. As well as complaints of patent infringement, Desktop Metal Inc. has alleged that the defendants had engaged in acts of trade secret misappropriation, unfair and deceptive business practices, and breach of contract. Markforged Inc. made various counter-claims of its own. In July 2018, a Federal Jury found that Markforged Inc. did not infringe two patents held by its rival Desktop Metal Inc. Claims of further violations of trade secrets and contract law were also considered. In the end, the dispute was settled, with neither party obtaining an advantage in the litigation. There was further conflict over whether the terms of the settlement in respect of non-disparagement were honored. The parties have also faced further intellectual property conflict. In 2021, Continuous Composites has filed a patent infringement lawsuit against Markforged Inc. In 2021, Desktop Metal Inc. brought legal action against SprintRay in Germany. Drawing upon this case study, this paper considers whether metal 3D printing will disrupt patent law, policy, and practice. It also explores the tension between the use of trade secrets in commercial 3D printing (such as in metal 3D Printing), and the open source ethos of the Maker Movement. This paper considers the larger implications of this intellectual property dispute over metal 3D printing for scarcity, regulation, and the abundance society. It also explores the innovation policies of the Biden administration in respect of advanced manufacturing—with a focus upon metal 3D printing and additive manufacturing.

Catch me if you can? Staggered inevitable disclosure doctrine (IDD) rejection and entrepreneurial activity in the US

AbstractResearch SummaryInevitable disclosure doctrine (IDD) refers to a legal doctrine where an employer can claim, without the need for proof or evidence, misappropriation of trade secrets to seek an injunction against an employee. Based on entrepreneurial spawning literature, for employees seeking to start their ventures, IDD rejection by state courts could therefore be a potential catalyst to entrepreneurial activity. In a sample of neighbor‐counties across state borders with and without IDD rejection, the two‐way fixed‐effects difference‐in‐differences estimates show positive effects for county‐level entrepreneurial outcomes. However, when applying more recently developed methods for testing staggered implementation, we find no support for county‐level entrepreneurial outcomes across multiple specifications and heterogeneities. The findings have implications for the limited efficacy of IDD rejection on regional entrepreneurial activity.Managerial SummaryThe value of protecting trade secrets is important for employers, and the role of laws in preventing employees from potentially disclosing their trade secrets is widely studied. One such legal doctrine is the inevitable disclosure doctrine (IDD) where an employer can claim, without the need for proof or evidence, misappropriation of trade secrets to seek an injunction against an employee. We find that IDD rejections by courts have a limited effect on the formation of startups in a county. The findings imply that investors are less encumbered by IDD rejections by courts and that policymakers may not find IDD rejections as a useful mechanism to prime local entrepreneurship.

Trade secret as a factor of ensuring national economic security: the practice of China and the USA (part 2)

The global economic and innovative impact of trade secrets is studied. Trade secrets have a broad reach and support the innovation ecosystem by protecting technological, product, market and organizational innovations, as well as providing a key complement and support to other intellectual property (IP). It is shown that misappropriation or theft of trade secrets from OECD countries is 1–3 % of GDP. The cost of trade secret theft has reached $ 1.7 trillion per year. On the example of the economy of China and the USA, the growing importance of intangible assets, commercial secrets and the increasing threats of their theft are shown. In the US, more than 80% of all economic espionage cases and 60 % of trade secret cases are related to China. Given their negative impact on national security, the US is applying new legislative mechanisms to protect IP and trade secrets. The challenges and risks associated with Ukraine’s cooperation with China are analyzed. Recommendations for their minimization and countermeasures against threats are given.

MARINA DISTRICT DEVELOPMENT COMPANY LLC., DOING BUSINESS AS BORGATA HOTEL CASINO & SPA V. AC OCEAN WALK LLC, DOING BUSINESS AS OCEAN CASINO RESORT

MARINA DISTRICT DEVELOPMENT COMPANY LLC., DOING BUSINESS AS BORGATA HOTEL CASINO & SPA V. AC OCEAN WALK LLC, DOING BUSINESS AS OCEAN CASINO RESORT

Corporate Espionage by Drone: Why Corporations Need Better Physical and Legal Protections

Today, corporate espionage has taken on a new, and more dangerous form, by using drones as the medium to conduct trade secret misappropriation and cyber-attacks against unsuspecting businesses. Drones allow for physical and cyber-attacks to be carried out with ease. They are cheap, easily accessible, and easy to use. Drones can be utilized in the stealing of trade secrets, consumer information, or even cause an interruption in the business’s daily processes - each costing the corporation tremendously. Part II of this Comment will provide a brief overview of relevant trade secret law, including the Uniform Trade Secrets Act, the Economic Espionage Act, and the Defend Trade Secrets Act, and discuss traditional and modern corporate espionage tactics. Part II will also cover the Computer Fraud and Abuse Act, and discuss the basic rules drone pilots must obey. Part III will discuss the problems arising for corporations when bad actors use drones for espionage and cyber-attacks, and present that counter-drone technology should be available to American businesses as it is a justified form of self-help. Part IV will provide a short synopsis of the counter-arguments against counter-drone technology use, and discuss the mitigation and other uses of counter-drone technology in other industries. Drones will become the future of corporate espionage and corporations need to have the resources necessary to protect themselves from this current, and only growing, threat. The use of C-UAS technology is a proactive step, which is more beneficial to the company, than the traditional and ill-fitting reactive steps currently available. C-UAS technology is justifiable self-help, necessary for the protection of trade secrets.

Race Cartels: How Constructor Collaboration Is Curbing Innovation in Formula 1

Formula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Federation Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the sport was becoming a “copying championship,” the FIA adopted new measures that ban extreme reverse engineering methods. Because these new FIA regulations do not limit the degree of coordinated conduct between teams, this approach will likely fail to remedy the sport’s copying problem because team plagiarism is an anticompetitive side effect of this collusive behavior. The FIA addresses the copying problem as one of trade secret misappropriation. By contrast, this Note approaches the issue as one of unregulated anticompetitive conduct. Analyzing the technical partnerships in Formula 1 under antitrust law elucidates their harmful effects on the racing series. This Note urges the FIA to adopt measures that limit Formula 1 teams’ ability to collaborate, before the “A-B team” phenomenon further diminishes the sport’s innovation efforts.

Taming the Paper Tiger: Deterring Chinese Economic Cyber Espionage and Remediating Damage to U.S. Interests Caused by Such Attacks

The U.S. faces an increasingly complicated set of national security and economic threats. Chief among these are: (1) increasingly sophisticated and damaging cyber-attacks that threaten national security; harm government institutions, for-profit enterprises (including defense contractors), and institutions of higher learning; and undermine the country’s system of property rights; and (2) rising levels of national debt held by foreign competitors. China poses the greatest threat in both regards. China’s government carries out, organizes, and/or facilitates cyber-attacks to misappropriate intellectual property with serious consequences to the U.S.’s national security and economy. China also has acquired significant holdings in U.S. government issued debt instruments. Mounting U.S. government debt restricts annual federal government budgetary decisions, negatively affects the U.S.’s international standing as a borrower, and threatens national security by giving foreign debt holders, such as China, potential leverage in foreign relations negotiations. No policy prescription to date has achieved meaningful and lasting success in addressing these threats, and there are indications the threats are only worsening. The National Trade Secret Protection and Remedy Strategy (“NTSPS”) policy prescription proposed by this Article addresses the cyber attack and federal debt threats in a way that links and transforms them from vulnerabilities into leverage to protect the U.S.’s national security, system of property rights, and future economic well-being. Specifically, the U.S. government should pursue trade secret theft-related litigation and remedies against the Chinese government and its surrogates in U.S. federal courts. The proposed NTSPS would: (a) create a specific, limited government property interest in intellectual property developed under government defense contracts; (b) create extra-territorial jurisdiction for the U.S. government and personal jurisdiction over foreign nations that engage in trade secret misappropriation either directly, or indirectly through state-supported or enabled entities or persons; and (c) provide for ready availability of pre-judgment remedies, such as attachment and liens to secure the government’s remedy, and satisfaction of judgement through execution on U.S. debt held instruments held by the mis-appropriator — in this case, China. Successful implementation of the NTSPS would require amendments to several existing federal statutes and defense contracting regulations and procedures. Implementing the NTSPS strategy will allow the U.S. federal government to: (1) compensate itself and U.S.-based companies for the damages each has suffered as the result of Chinese-led or sponsored cyber-attacks; (2) deter future Chinese cyber-attacks by conveying a strong message that the U.S. will take meaningful action in response to said attacks; (3) slow the advancement of Chinese military technology by forcing China to internalize the significant research and development expenses incurred by the U.S. to develop the technological capabilities often targeted by cyber espionage initiatives; (4) significantly reduce U.S. debt and consequently the restrictions and burdens it places on the U.S. economy and national defense capability; and (5) pare down the financial leverage China holds over the U.S. in foreign relations.

Molecular characterization of some Egyptian sorghum bicolor genotypes using ISSR markers

Sorghum is the second African most important cereal, it's well adapted to tropical and sub-tropical areas, It enters in the industry of flour, fuel, source of fiber, the manufacture of fermentation and beer, extracting some chemical compounds like dextrin, windbreakers, building fences and fresh fodder crops especially in summer. Microsatellites or Inter Simple Sequence Repeats (ISSRs) are becoming the markers of choice in many plant breeding programs because they are transferable, multiallelic co-dominant, PCR-based, easily reproducible, randomly and widely distributed along the genome. Twenty Egyptian sorghum (Sorghum bicolor (L.) Monech) genotypes were assessed for DNA polymorphism using 10 ISSR primers. All tested ISSR primers yielded amplified products and generated 152 alleles (average of 15.2 alleles/marker). Out of the 10 used ISSR primers, eight primers obtained 24 unique markers among the 20 studied sorghum genotypes. However, molecular characterization revealed polymorphism percentage of a 100% for ISSR markers, including a high level of polymorphism among the studied sorghum genotypes. On the other hand, cluster analysis using UPGMA method classified the 20 sorghum genotypes into two groups using ISSR markers. The cluster analysis showed a high genetic variation among the studied sorghum genotypes and the diversity of these genotypes was in an agreement with their source pedigree. The results of principle coordinate analysis (PCoA) were closely in line with those of the cluster analysis. These results could be used by breeders to develop protocols for sorghum improvement. From the commercial point of view, molecular fingerprinting is a useful tool for several applications, including its use in breeding programs, in determining relatedness of genotypes and for pedigree verification. Molecular fingerprints are useful for varietal protection to prove ownership or derivation of plant lines as well as to prove violations and breaching of patent and plant variety protection certificates or the misappropriation of trade secrets.

Trade Secrets – A Detailed Analysis of Domestic and Global Challenges

The vast development of the recognition of trade secret rights from roots in English common law to the Agreement on Trade Related Aspects of Intellectual Property (TRIPs) has ensured that the topic has recently been subject to intense scrutiny. Over the past thirty-five years, trade secret protection has become an essential method for companies to regulate their own respective proprietary information, in place of a backdrop of law. This development was recognized at the legislative level by the enactment of the Uniform Trade Secrets Act (first in 1979, and again in 1985), whereby states were free to modify or omit sections of the text. Nevertheless, the implementation of what was aimed to be a uniform piece of legislation has not gone accordingly. Debates surrounding the status of trade secrets as either a tort or intellectual property (akin to patents, trademarks, and copyrights) have affected the efficiency of the UTSA as a uniform code. To accompany this dilemma, restrictive covenants (accompanied by various doctrines) and confidentiality agreements have also affected how the UTSA is interpreted at a judicial level. Additionally, the enactment of the Economic Espionage Act has criminalized the misappropriation of trade secrets (under certain conditions). The federal legislation has exposed flaws in maintaining trade secret legislation at state level, criminalizing what is a civil violation has created a vacuity in the area of trade secret litigation. To add to this, the United States is a signatory to the TRIPs agreement. The lack of civil federal legislation raises many issues concerning whether the U.S. is satisfying its obligations under the Agreement, and as such, may hinder efforts to influence the policies of China and the European Union, especially. The objective of this academic research is to analyze the status of trade secrets as a category of intellectual property, insofar as how the UTSA distinguishes between trade secrets and confidential information, and how restrictive covenants and contracts exist to protect trade secrets outside the sphere of the legislation. This study will also analyze the flaws in the other categories of legislation that currently exist. Underlying these studies will be the contention that a civil federal trade secrets act can rectify a great deal of problems that are currently preventing uniformity within the US, and preventing satisfaction of external obligations.

Employees, Trade Secrets and Restrictive Covenants in Korea

최근 기술의 급격한 발전과 사회와 경제적 정보시스템의 진화는 영업비밀의 중요성을 초래하고 있다. 특히 정보통신과 친환경기술 분야에서의 첨단기술의 개발과 기술이전 과정에서 영업비밀 관련 분쟁이 급증하고 있는 실정이다. 특히, 경쟁사업자가 주도하는 산업스파이 행위와 종업원 이직으로 인한 기업의 핵심기술 유출 문제는 기업뿐 아니라 국가경쟁력 관점에서도 심각한 실정이다. 영업비밀의 부정이용행위를 금지하고, 나아가 시장에서의 공정한 경쟁질서를 유지하기 위하여는 효율적인 법적 보호 체계가 시급한 과제이다. 대규모 전세계적 노동 유연성이 심화되고 있는 상황에서, 영업비밀 보호와 경업금지계약 법규범 정비는 매우 중요한 과제이다. 본 논문은 근로 관계에서의 영업비밀 보호 문제, 재직 중 그리고 퇴직종업원의 경업금지 의무 이슈에 대한 실체법적 문제와 구제와 절차상 문제점을 검토하고, 개선방안을 모색하고자 한다.In recent years, the rapid advances in technology and the evolution in social and economic information have led to the increasing importance of trade secrets in Korea. Advanced technology in the field of information and environmentally sound technology has also increased the possibility of accidentally or intentionally acquiring information, and has been accompanied by an increase in sharp practice related to trade secrets. With the increase in industrial espionage through the enticement of present and/or former employees of a company by a competitor, the issue of protecting trade secrets has gained a great deal of attention. Thus, an efficient legal system became a necessity in order to prevent acts of unfair competition such as the misappropriation of trade secrets and to maintain fair competition in the market. In the presence of large scale global labour mobility, the protection of trade secrets and the law on post-contractual non-compete clauses (restrictive covenants) in an employment context have presented a major problem. The paper starts with the protection of trade secrets in an employment context, then moves to restrictive covenants, post-contractual competition issues and finally problems of procedure and enforcement.

Intellectual Contract

Technological change is altering the nature of contract toward a greater focus on intangible assets. The direction of technological change toward greater connectivity, interoperability, mobile communications, the Internet of Things (IoT), artificial intelligence (AI), virtual inventions, and cooperative research and development (R&D) has profound implications. This article develops a new framework that I refer to as “Intellectual Law” to address this shift. The article introduces the concept of “Intellectual Contract” (IC) to characterize agreements for invention, innovation, and technology adoption. The article also introduces the concept of “Intellectual Tort” (IT) to describe liability including but not limited to misappropriation of trade secrets and infringement of patents, trademarks, and copyrights. Intellectual Law provides a consistent framework for IC, IT and Intellectual Property (IP). The article observes that legal protections for inventors cannot rely solely on what has proven to be a flawed combination of IT and IP. The article argues that greater emphasis on IC would improve both IT and IP. Because IC protects expectation interests it is essential for creating, developing, sharing, and applying intangible assets. IC generates gains from trade that enhance the benefits of inventors, innovators and adopters beyond what can be achieved by IT and IP alone.

Protecting Battery and Energy Technology: Trade Secrets

Protecting Battery and Energy Technology: Trade Secrets by Charles Collins-Chase, and Kenneth Aruda, Ph.D. Finnegan, Henderson, Farabow, Garrett & Dunner LLP Patents and trade secrets coexist as separate intellectual property regimes, and as a result, businesses and inventors must often choose between patent and trade secret protection. Recent legislative changes, including the Defend Trade Secrets Act (DTSA) in 2016 directly affect this choice. Manufacturers have long faced a dilemma when trying to protect some of their most valuable assets—the manufacturing methods behind their products. Method patents can be difficult to draft, license, and assert. But trade secrets offer limited protection absent misappropriation. The DTSA aims to place trade secrets on equal footing with other forms of intellectual property by creating a new federal civil cause of action for trade secret misappropriation, and includes an ex parte seizure provision and whistleblower protections. Under current legislation, the prior user defense preserves the right to continue the practice of a trade secret invention in the United States despite subsequent issuance of a third party patent. The availability of this defense limits the need to patent every commercial improvement and simplifies freedom to operate analysis for commercial processes. With these advantages in mind, for technologies such as catalysis, electrode production processes, and complex processing of gas diffusion layers, trade secrets could in some instances be a desirable alternative to patents. One should consider developing a trade secret protection plan that fits your business, and assess the sensitivity level of various types of information and establishing security measures that should be in place at each level. To qualify as a trade secret, federal law requires that “reasonable measures” be taken to keep the information secret. This presentation aims to inform how courts have treated various types of secrecy measures mentioned in recent cases.

The DTSA and the New Secrecy Ecology

The Defend Trade Secrets Act (“DTSA”), which passed in May 2016, amends the Economic Espionage Act (“EEA”), a 1996 federal statute that criminalizes trade secret misappropriation. The EEA has been amended several times in the past five years to increase penalties for violations and expand the available causes of action, the definition of a trade secret, and the types behaviors that are deemed illegal. The creation of a federal civil cause of action is a further expansion of the secrecy ecology, and the DTSA includes several provisions that broaden the reach of trade secrets and their protection. This article raises questions about the expansive trajectory of trade secret law and its relationship to entrepreneurship, information flow, and job mobility. Lobel argues that an ecosystem that supports innovation must balance secrecy with a culture of openness and exchanges of knowledge. This symposium article is based on Professor Orly Lobel’s keynote presentation at the March 10, 2017 symposium entitles “Implementing and Interpreting the Defend Trade Secrets Act of 2016,” hosted by the University of Missouri School of Law’s Center for Intellectual Property and Entrepreneurship and the School’s Inaugural Issue of the Business, Entrepreneurship & Tax Law Review.

The Copyright Conflict between Musicians and Political Campaigns Spins Around Again

Research Article| December 01 2017 The Copyright Conflict between Musicians and Political Campaigns Spins Around Again Danwill D. Schwender Danwill D. Schwender Danwill Schwender is an attorney at Foldenauer Law Group, where he represents individuals and companies in business disputes involving claims such as breach of contract, fraud, intellectual property infringement, and trade secret misappropriation. Mr. Schwender obtained a master of laws degree in intellectual property law from the George Washington University Law School, a juris doctor degree from the Thomas Jefferson School of Law, and a bachelor of science degree from the University of Utah. He has written several articles in the field of intellectual property law, which have appeared in academic journals and books. Search for other works by this author on: This Site Google American Music (2017) 35 (4): 490–500. https://doi.org/10.5406/americanmusic.35.4.0490 Cite Icon Cite Share Icon Share Facebook Twitter LinkedIn MailTo Permissions Search Site Citation Danwill D. Schwender; The Copyright Conflict between Musicians and Political Campaigns Spins Around Again. American Music 1 January 2017; 35 (4): 490–500. doi: https://doi.org/10.5406/americanmusic.35.4.0490 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All Scholarly Publishing CollectiveUniversity of Illinois PressAmerican Music Search Advanced Search The text of this article is only available as a PDF. Copyright 2018 by the Board of Trustees of the University of Illinois2018 Article PDF first page preview Close Modal You do not currently have access to this content.

The Global Harmonization of Trade Secret Law: The Convergence of Protections for Trade Secret Information in the United States and European Union

Victoria Cundiff litigates trade secrets disputes in state and Federal courts nationally, coordinates international trade secrets litigation, and helps clients develop alternatives to litigating trade secrets disputes. She is the Chair of AlPLA's Trade Secrets Litigation Subcommittee and is Co-Chair of the New York State Bar Association's Committee on Trade Secrets. Bradford Newman founded and leads Paul Hastings' International Employee Mobility and Trade Secret practice. He is the author of Protecting Intellectual Property in the Age of Employee Mobility: Forms and Analysis, a comprehensive treatise published by ALM that offers authoritative guidance on legal risks and practical steps companies can take to protect their IP and remedy IP theft. In connection with his national practice spanning many industries, Mr. Newman routinely serves as lead trial counsel in cases with potential eight and nine-figure liability, and has successfully litigated a broad spectrum of trade secret and employee mobility cases in state and federal courts throughout the country. Jeffrey A. Pade is an intellectual property litigator with over 20 years of experience in all phases of patent trade secrets, and other intellectual property laws. He has directed complex and international patent and trade secrets litigation strategies concerning mechanical, semiconductor, and many other technologies for clients around the globe, and actively represents international clients in intellectual property audits, investigations, and strategic initiatives. Anand B. Patel provides strategic business counseling on intellectual property disputes, investigations, and transactions, and has extensive trial and appellate experience in patent and trade secret matters. A former Federal Circuit clerk, he represents a diverse group of clients on technologies ranging from microprocessor fabrication to pharmaceuticals. ********** AS major regions across the world seek to harmonize trade secret law within and across jurisdictions, international companies now should focus on building their own uniform policies and procedures for protecting their intellectual property and defending against claims of misappropriation. Given the recent passage of the Defend Trade Secrets Act (DTSA) and the EU Trade Secrets Directive (the Directive), it is clear that both regions have recognized the substantial value of trade secrets to the global economy and have decided to take analogous stances on the basics of trade secret law, including what constitutes a trade secret and how a violation occurs. Although the similarities are not unexpected the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1) provides many foundational provisions there are important nuances in each locale's rules that affect how companies should consider enforcing trade secret rights and defending against misappropriation claims across those major international jurisdictions. I. Overview of the DTSA After several unsuccessful attempts over more than five years, (2) Congress in April overwhelmingly approved (3) and President Obama in May signed (4) the DTSA, which provides a Federal private right of action for trade secret misappropriation. The DTSA is incorporated into the previously-enacted Economic Espionage Act (EEA), (5) which provides criminal penalties for misappropriation. (6) The DTSA pulls heavily from the Uniform Trade Secrets Act (UTSA), (7) already in force in some form in 48 states, (8) by providing similar definitions of key terms and remedies for misappropriation. (9) In addition to providing the right to sue in Federal court (importantly, without preempting parallel state law claims (10)), the DTSA provides an ex parte seizure mechanism and whistleblower immunity. II. Overview of the EU Directive In 2013, after studies (11) showed the importance of trade secrets to the economy, particularly to small and medium-sized enterprises, and the fears of many organizations that asserting claims for misappropriation would result in inadequate remedies and potentially place their trade secrets at risk of public disclosure, the European Commission proposed a Directive to address differences in the trade secret laws of the EU Member States. …

Unpacking Trade Secret Damages

This study is the first to conduct an in-depth empirical analysis of damages in trade secret cases in the U.S. From an original data set of cases in federal courts from 2000 to 2014, I assess the damages awarded on trade secret claims. In addition, a wide range of other variables are incorporated into the analysis, including those related to background court and jurisdiction information, the kinds of trade secrets at issue, background details about the parties, the related causes of action included with claims of trade secret misappropriation, and details about the damages awarded. Analysis of this data and the relationship between and among the variables yields insightful observations and answers fundamental questions about the patterns and the nature of damages in trade secret misappropriation cases. For instance, I find average trade secret damage awards comparable to those in patent cases and much larger than trademark cases, very positive overall outcomes for plaintiffs, and higher damages on business information than other types of trade secrets. The results make significant contributions in providing deeper context and understanding for trade secret litigation and IP litigation generally, especially now that we enter a new era of trade secret litigation in federal courts under the Defend Trade Secrets Act of 2016.

Professorss Letter in Opposition to the Defend Trade Secrets Act of 2015 (S. 1890, H.R. 3326)

In August 2014, thirty-one law professors signed a letter in opposition to proposed federal legislation to create a civil cause of action for trade secret misappropriation. We write to express continued concerns about the current version of this legislation, the Defend Trade Secrets Act of 2015 (“DTSA”), S. 1890 and H.R. 3326. While we agree that effective legal protection for U.S. businesses’ legitimate trade secrets is important to American innovation, we believe that the DTSA — which would represent the most significant expansion of federal law in intellectual property since the Lanham Act in 1946 — will not solve the problems identified by its sponsors. Instead of addressing cyberespionage head-on, passage of the DTSA is likely to create new problems that could adversely impact domestic innovation, increase the duration and cost of trade secret litigation, and ultimately negatively affect economic growth. Therefore, the undersigned call on Congress to reject the DTSA.