The DTSA: The Litigator\u27s Full-Employment Act

Civil litigation is expensive, both for the party bringing suit and the party that must defend against such claims. For a variety of reasons, not the least of which are the usual requests for preliminary relief and protective orders, trade secret litigation is particularly expensive. These costs can have a crippling effect on small businesses and start-up companies that are accused of trade secret misappropriation, often resulting in litigation expenses that exceed the alleged harm to the plaintiff. Such litigation is particularly costly and unjust in cases where the plaintiff asserts rights that, due to common misunderstandings about the limited scope of trade secret rights, they do not have. While no body of law can perfectly distinguish right from wrong, and, thus, there are bound to be civil judgments that are both under- and over-inclusive, due to the possible anticompetitive effects of trade secret claims, the predominate law that currently governs trade secret law in the United States, the Uniform Trade Secret Act, includes numerous provisions that are designed to strike a balance between the putative trade secret owner and the alleged misappropriator, frequently erring on the side of competition, information diffusion, and employee mobility. Unfortunately, the proposed legislation to create a civil cause of action for trade secret misappropriation, the Defend Trade Secrets Act (DTSA), threatens to upset this balance by, among other things, significantly increasing the costs of trade secret litigation. This Essay details how various provisions of the DTSA are bound to be highly litigated and, as a result, will greatly increase costs for litigants and the federal judiciary, making the DTSA not worth its costs

The \u3ci\u3eErie/Sears/Compco\u3c/i\u3e Sqeeze: \u3ci\u3eErie\u27s\u3c/i\u3e Effects on Unfair Competition and Trade Secret Law

On the occasion of the 80th anniversary of the Supreme Court\u27s famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law in the U.S. since Erie, with a particular focus on trade secret law

The Myth of Uniformity in IP Laws

When Congress enacts federal laws, it is often because of the asserted benefits of a “uniform” law and the, often unspoken, assumption that federal laws are somehow more uniform than uniform state laws. Infact, the uniformity argument was a primary justification for theenactment of both the Defend Trade Secrets Act of 2016 and the EU Trade Secret Directive. The quest for uniformity, particularly with respect to laws that relate to intellectual property rights, is an old story in the United States. During the drafting of the U.S. Constitution, the existence of inconsistent state laws was a central reason for the enactment of the Intellectual Property Clause. The business community tends to like uniformity because, intheory, when laws are uniform they are more predictable, and when laws are more predictable, transaction costs are lowered. This is particularly true, as is the case of the Uniform Commercial Code, when uniform laws include default rules that eliminate the need for private ordering except in cases where there is a desire to change the default rules. Unfortunately, there are numerous reasons why the uniformity offederal laws is more myth than reality, particularly with respect to thethree federal intellectual property laws that preceded enactment of theDTSA: the Patent Act; the 1976 Copyright Act; and the Lanham Act. Although the existing federal patent, copyright, and trademark lawshave been in existence for decades, and there is a rich body ofjurisprudence under each area of law, anyone who researches these areas of law knows that the alleged uniformity is illusory on many important issues. This is not to suggest that federal laws are not needed with respect to these matters, but rather, it suggests that when adopting federal law we should not assume that uniformity will follow and, instead, should be more careful to identify the sub-issues upon which uniformity is most important. This article begins by providing examples and explanations for the lack of uniformity in federal intellectual property law. In part two, it labels and categorizes the various uniformity problems in an effort to identify those which might be solved through better legislative processes and drafting and those that cannot be resolved in such manner. The article concludes with a discussion of related issues of federalism and theimportant question whether some of the issues that cannot be resolved through better legislative processes and drafting are better left in thelaboratories of state courts

Defenders of Small Business?: A Perspective on the Supreme Court’s Recent Trademark Jurisprudence,

In this comment, I explore a possible explanation for the Supreme Court\u27s renewed interest in trademark law or, even if it is not, one I hope all courts consider when they decide trademark cases: the impact that the improper application of trademark law has on small and fledgling businesses. If the United States is truly a country that values free competition and wants to encourage the development of new businesses-many with new and innovative ideas-it must reduce the barriers to entry that an expansive view of trademark law erects. While many businesses innovate and create works of authorship and, therefore, should be aware of the potential benefits of copyright and patent law, all businesses need a name and identity. Thus, of the three intellectual property doctrines (four including trade secret law), trademark law is the one that is most likely to immediately and directly affect small businesses and fledgling entrepreneurs

Meatspace, the Internet, and the Cloud: How Changes in Document Storage and Transfer Can Affect IP Rights

This article discusses the intellectual property issues from meatspace to online services and the Internet. It further explores intellectual property issues from the Internet to the Cloud. Finally, it discusses the implications of cloud computing for trade secret protection

A Typology of Disclosure

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in various contexts. Sometimes, but not as often as information owners/possessors assert, the disclosure of information will result in the loss of associated rights in the information, but other times it will not. This can happen, for instance, when no legal rights attach to a specified body of information, or when any rights that do attach (like copyrights) continue to exist even if there is a disclosure of the information. Because different areas of information law have developed different meanings of the term disclosure (and related terms, like “publication”), it is important for scholars, courts, and litigants to understand those meanings and use them properly. Otherwise, there is a risk that claims of wrongful disclosure of information will unduly influence policymakers and judges to favor the claims of information owners/possessors over those who are entitled to access and use the subject information. In other words, the limitations that exist on the scope of various information rights should not be overshadowed by the rhetoric of loss and theft when no such loss or theft is possible. This article begins by first illustrating the different ways that the term “disclosure” is used in law, using trade secret law, patent law, and copyright law as case studies. It concludes by setting forth a typology of disclosure that should be used to explain the legal consequences of acts of disclosure for various types of information. Only Type-L disclosures (those that result in the loss of associated information rights) fit the rhetoric of information owners/possessors