Misappropriation of Trade Secrets

The DTSA defines a trade secret as 'all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing' that is 'not generally known or readily ascertainable by proper means.'

To establish a misappropriation of trade secret claim under the DTSA, the plaintiff must prove that: (1) the defendant acquired the trade secret through improper means; (2) the defendant used or disclosed the trade secret without authorization; and (3) the defendant knew or should have known that the trade secret was a trade secret.

Examples of improper means of acquiring a trade secret include theft, bribery, industrial espionage, and reverse engineering.

Examples of unauthorized use or disclosure of a trade secret include using the trade secret to compete with the owner of the trade secret, disclosing the trade secret to a third party without the owner's consent, and using the trade secret to create a new product or service.

Remedies available to a plaintiff who has been the victim of misappropriation of trade secrets include injunctions, damages, and attorney's fees.

The statute of limitations for a misappropriation of trade secret claim under the DTSA is 5 years.

Trade secrets and patents are both forms of intellectual property, but they have different characteristics and offer different types of protection. A trade secret is protected for an indefinite period of time, as long as it remains secret. A patent, on the other hand, is protected for a limited period of time, typically 20 years. Trade secrets are not subject to public disclosure, while patents are. Trade secrets can be used to protect any type of information, while patents can only be used to protect inventions.

The purpose of the DTSA is to create a federal cause of action for misappropriation of trade secrets, to provide uniform standards for the protection of trade secrets, and to encourage the development and use of trade secrets.

Defenses to a misappropriation of trade secret claim include: the defendant did not acquire the trade secret through improper means; the defendant did not use or disclose the trade secret without authorization; the defendant did not know or should not have known that the trade secret was a trade secret; and the trade secret was not valuable.

Factors that courts consider when determining whether a trade secret is valuable include: the extent to which the trade secret is known outside of the owner's business; the extent to which the trade secret is used by the owner's competitors; and the extent to which the trade secret gives the owner a competitive advantage.

Best practices for protecting trade secrets include: limiting access to trade secrets to only those employees who need to know them; requiring employees to sign non-disclosure agreements; and implementing physical security measures to protect trade secrets.

The ITC can investigate allegations of misappropriation of trade secrets, issue cease-and-desist orders to stop the misappropriation of trade secrets, and impose tariffs on products that are made using misappropriated trade secrets.

International agreements that protect trade secrets include: the Paris Convention for the Protection of Industrial Property, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the World Trade Organization (WTO) Agreement on Trade Secrets.

Challenges in enforcing trade secret laws include: the difficulty in defining what constitutes a trade secret; the difficulty in proving that a trade secret has been misappropriated; and the difficulty in obtaining injunctive relief to stop the misappropriation of trade secrets.

Trends in trade secret law include: the increasing use of trade secret laws to protect digital information, business methods, and customer data.