The DTSA’s Federalism Problem: Federal Court Jurisdiction over Trade Secrets

The Defend Trade Secrets Act of 2016 (“DTSA”) greatly expanded federal protection of trade secrets. But how many trade secrets were “federalized”? The short answer is: many, but not all. At the heart of the DTSA lies a mammoth jurisdictional problem: Congress only federalized certain trade secrets. Unlike copyrights and patents, Congress has no independent constitutional basis to regulate trade secrets. Instead, like trademarks, trade secrets are regulated under the commerce clause and must satisfy a jurisdictional element, which requires a nexus between interstate commerce and trade secrets. But unlike trademarks, Congress chose not to legislate to the fullest extent of its commerce clause power, excluding some trade secrets from federal protection. In short, the DTSA’s jurisdictional element ensures that only “technical” trade secrets—i.e., formulae, manufacturing processes, etc.—qualify for federal protection. “Business information” secrets are protected, if at all, only under state law. This Article is the first to explain the DTSA’s jurisdictional element in depth and explore its practical and theoretical implications. Interpretation of the jurisdictional element in the DTSA is the Act’s key judicial dilemma. The jurisdictional element imposes two requirements on a federal plaintiff’s trade secret: (1) that the trade secret closely relates to a product or service; and (2) that the product or service actually flows in interstate commerce. As a practical matter, the old trade secret tort has been split in two—with technical trade secrets federalized and business information remaining protected solely by state law. Theoretically, this interpretation brings trade secret policy in line with other species of federal intellectual property policies

Open secrets

The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and institutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing literature on cuisine, magic, and Internet search.

The Role of Trade Secrets in Innovation Policy

[Excerpt] This report provides an overview of the law and policy of trade secrets. It discusses the role of trade secrets in U.S. innovation policy. It then reviews the sources of trade secret law and the substantive rules that they provide. The report then provides a more detailed review of existing federal legislation that pertains to trade secrets. In its next section, the report then discusses the relationship between patent law and trade secret law. The report closes with an identification of congressional issues and options within this field

Identifying the Trade Secrets at Issue in Litigation Under the Uniform Trade Secrets Act and the Federal Defend Trade Secrets Act

Identifying the Trade Secrets at Issue in Litigation Under the Uniform Trade Secrets Act and the Federal Defend Trade Secrets Ac

Legal framework for theft of trade secrets and corporate espionage in Malaysia: adhering to the trans pacific partnership agreement (TPPA)

Theft of trade secrets and corporate espionage threaten innovation, growth, development and investment of business entities and national economy globally. Civil remedies alone are insufficient to protect trade secrets from this growing threat. As a measure to address this issue, the TPPA requires signatory countries to criminalize theft of trade secrets and corporate espionage. In Malaysia civil remedies under the common law of breach of confidence and employment contract, protects the owner’s right against any misappropriation of trade secrets. However there is no law to criminalize theft of trade secrets and corporate espionage in Malaysia. This research is undertaken to establish a legal framework to criminalize theft of trade secrets and corporate espionage apart from analyzing the protection of trade secrets in Malaysi

Practice Guide: Post-Employment Trade Secrets in New York

Stephanie Soondar writes an article based on modern day trade secrets. Her article highlights the importance placed on trade secrets in today’s market. She provides an in depth look at: What trade secrets are; how they are protected; and the causes of action that result in disclosing trade secrets. Her article focuses on New York practice

Правовий режим комерційної таємниці на підприємстві

The article is devoted to establishing the legal regime of trade secrets in the enterprise. A procedure for the introduction of legal regime of trade secrets in the enterprise. It is estab­lished that the concept of «trade secrets» is a generic term "confedential information". Determined by the characteristics of trade secrets : the unknown for others, limited access, the availability of commercial value, and the legal regime of the enterprise

The Economic and Innovation Impacts of Trade Secrets

Trade Secrets are a flexible innovation tool that are used across sectors and types of firms. This report summarises and critiques the publicly available academic and grey economic literature on trade secrets and highlights key innovation aspects. Developed for the UK Intellectual Property Office as a research paper, the report finds that Trade secrets can both enable or hinder innovation. Other key points: Trade secrets are particularly important to UK firms in the R&D services, tech, and across manufacturing and non-manufacturing sectors. Larger firms rely on trade secrets more than smaller firms. Trade secrets can be highly valuable firm assets, although most trade secrets are not. Firms choose trade secrets to maintain a competitive advantage by avoiding the disclosure associated with other types of IPR. However, trade secrets are vulnerable to reverse engineering and misappropriation or theft. Cybertheft and economic espionage are increasing concerns. Trade secrets serve as a substitute or complement to patents. Most trade secrets cover non-patentable innovation such as marketing and organisational innovations. Trade secrets support innovation but also restrict knowledge flows and labour mobility. Stronger policy benefits existing trade secrets holders and encourages investment in R&D, yet reduces future innovation and creates barriers to entry. However, many questions remain and the empirical evidence base for trade secrecy is weak. This report finds that further work is needed to develop an evidence base for trade secrets, and that exploration of key themes such as the interaction of trade secrets with patentability could better inform policy

Judicial Determination of Confidentiality in Trade Secrets

Trade secrets as one of the core competitiveness of enterprises, related to the survival of enterprises. In the commercial competition, trade secrets is undoubtedly the right person’s wealth code, how the right person to take effective measures to protect trade secrets from being stolen is a matter of concern. In recent years, the practice of trade secret disputes have increased year by year, in the protection of trade secrets dispute cases, the right and the defendant on the identification of trade secrets, especially on the identification of confidentiality has always been the focus of controversy. Even though more and more enterprises on trade secret protection awareness is increasing. But from the many relevant judicial cases, can be seen: trade secrets in practice for trade secrets protection measures still have great loopholes, specifically manifested as: the right to protect the meaning of trade secrets is not clear, the protection of the object is not specific, the duty of confidentiality can not be confidential subject to know or limitations; confidentiality measures and the value of trade secrets are not adaptive; confidentiality measures can not be recognized and so on. This paper combines the recent judicial practice cases, to explore in practice to achieve the “corresponding confidentiality measures” of the core conditions, and in this way for the enterprise to establish trade secret protection system to provide reference