Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?

Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade secret owners of filing complaints for the purpose of running competitors out of business, or restraining individuals from discussing matters which are unfavorable. This Article enters the discussion to critically assess whether there is reason to consider restricting these actions. It concludes that trade secret litigation on the whole does not inappropriately impinge on speech rights. Even if certain cases come closer to offending defendants’ free speech rights, these occasions and the concerns they raise are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil and intellectual property cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, minimize the risk of free speech incursions

RATs, TRAPs, and Trade Secrets

Technology has facilitated both the amount of trade secrets that are now stored electronically, and the rise of cyber intrusions. Together, this has created a storm perfectly ripe for economic espionage. Cases involving unknown or anonymous offenders who may not be in the United States and who steal trade secrets using remote access tools (“RATs”) are especially problematic. This Article is the first to address and place trade secret misappropriation within the larger backdrop of cybersecurity. First, it argues that systemic issues related to technology will continue to make legislative and judicial solutions suboptimal for cyber misappropriation. Second, it explores how the rhetoric of war has infiltrated the national discourse on cybersecurity and cyber misappropriation. Third, the Article introduces and coins the acronym TRAP. Standing for “technologically responsive active protection,” TRAP serves as a guiding principle to further refine the reasonable efforts requirement for the protection of trade secrets. The Article also critically examines such active defense counterstrike techniques as hacking back and the controversy surrounding this potential strategy

\u3ci\u3eeBay\u3c/i\u3e, Permanent Injunctions, and Trade Secrets

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm even where the loss has been compensated monetarily. Moreover, where injunctions are requested but denied, the lack of irreparable harm seemed to have been the factor most often articulated as the reason for the denial

The Experimental Use Exception to Patent Infringement: Do Universities Deserve Special Treatment?

The experimental use exception has recently come under attack by many who consider it too narrow. Much of this discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use exception when its researchers engage in research or conduct experiments using patented inventions. To determine whether such a narrowing is proper, one must consider the overarching theoretical question about the tradeoff between protecting patentees\u27 rights and maintaining incentives to innovate. In the context of the experimental use exception, this Article posits that a narrow experimental use exception strengthens incentives to invent and innovate, while a broad experimental use exception would provide disincentives to invest in patenting and innovation. This is especially so given the nature of modern university research and existing patent-licensing practices. Part I of this Article provides background on the experimental use exception. Part II discusses the Bayh-Dole Act, its alteration of the landscape of university research, and its impact on university patenting activity. Part III explains why, in reality, university research will survive a narrow experimental use exception. Finally, Part IV discusses why the experimental use exception is appropriately narrow and proposes a test that ought to guide Congress in deciding when legislative broadening is necessary