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

Striking a Balance: When Should Trade-Secret Law Shield Disclosures to the Government?

In 2010, Toyota issued recalls on over eight million vehicles because of faulty acceleration. Assume that the National Highway Traffic Safety Administration (NHTSA) requests that Toyota allow the government access to the data in black boxes on the recalled cars. The black boxes are operated by proprietary software and can only be accessed with special codes by Toyota. Assume further that Toyota refuses to provide the Black Box data to the government, claiming that it would reveal its trade secrets. How should courts approach what I coin these refusal-to-submit cases? There is a void in the literature and the case law on appropriate theoretical and doctrinal approaches for the special circumstances created by these cases. The Article is the first to identify this gap in the law and to examine the problem from the lens of trade secret law with an eye toward developing a more principled approach to resolving these cases. I examine cases that address, in other contexts, when one party can be ordered to produce its trade secrets to another. Lessons from these cases ultimately help frame the proposed “shield or disclose” model. Moreover, in the process of deriving guidance for the creation of the shield or disclose model, the Article makes a further contribution by analyzing the varied and obscure patchwork of agency rules, to succinctly identify themes and approaches relevant to the refusal-to-submit problem

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 Art-icle 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

Technology and Intellectual Property: New Rules for an Old Game?

This foreword to the first issue of 2009 for the Journal of Technology Law and Policy discusses the questions presented by the merger of technology and intellectual property and considers how best the two areas should co-exist

Intellectual Property and Employee Selection

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should intellectual property (IP) serve as a defense for the company’s employee selection? This question has never before been addressed in the literature, and as it currently stands, employment discrimination law does not consider IP in any capacity. Accordingly, this paper is the first to examine bridging the worlds of employment discrimination law and intellectual property law. It suggests including considerations of IP in the employment discrimination jurisprudence. The proposed mechanism for integrating these two areas is through an “IP Defense” which would require an employer defending an employment discrimination case on the basis of IP to establish that (1) it owns IP rights, (2) there is a relationship between the IP and the business practice that resulted in the employee selection decision, (3) the job description is tied to the IP, and (4) there is a direct financial correlation between the IP and the company’s business success. It requires balancing, on a case by case basis, IP rights and antidiscrimination policies, through the existing employment discrimination framework of Title VII