Trade Secrets

The latest appellate decision in the nearly 20-year legal battle between Ajaxo and E*Trade highlights the importance of expert discovery and a well-developed trial court record for a plaintiff attempting to claim reasonable royalties for trade secret misappropriation. The saga between Ajaxo and E*Trade began back in the late 1990s, ... Read More

If you run a business that depends on data to drive success — and what business doesn’t these days? — this tendency of information assets to escape is a major, perhaps existential, risk. Given that those assets are handled by human beings, the management challenge can feel a lot like ... Read More

COVID-19 has presented countless challenges, among them, the extraordinary need—and conversely, extreme shortages—of basic protective gear, ventilators, and personal protective equipment (“PPEs”) for healthcare professionals and essential businesses.  With these challenges come a myriad of opportunities for companies to develop, engineer, and deploy novel ways to address the shortage.  Possible ... Read More

The Defend Trade Secrets Act (“DTSA”) went into effect in May 2016. Since then, federal courts have largely adhered to existing law in their respective states to determine whether the inevitable disclosure doctrine applies to DTSA claims. This article provides a sampling of existing opinions that have either permitted or ... Read More

Even before the COVID-19 pandemic, many employers offered remote work options. Now employers all over the world are encouraging or requiring their employees to work remote from home. This means employees are accessing, maintaining, and sharing proprietary information outside of the office more frequently than ever before, thereby increasing the ... Read More

An essential element of trade secret protection is that the owner has made “reasonable” efforts to keep the information a secret. But as the Uniform Trade Secrets Act tells us, those efforts must be reasonable “under the circumstances.” When circumstances change, as they have recently, we need to recalibrate. In ... Read More

Loyal readers are familiar with the DOJ’s “China Initiative,” launched in November 2018 to prosecute the theft of U.S. trade secrets by or for Chinese interests. Attorney General Barr reaffirmed the DOJ’s commitment “to combat the threat posed by theft directed and encouraged by the PRC” in an address at ... Read More

Trade secrets have become an increasingly valuable asset to many companies, but compared to other types of intellectual property, including patents, copyrights and trademarks, they are extremely “fragile,” and require that an owner undertake as many steps as possible to protect their information and be vigilant about the need to ... Read More

In last month’s post, Part 1 of this series, we considered the view of European academics that trade secrets are not “intellectual property” because they don’t give the power to exclude others, like patents, copyrights and trademarks do. But considering that trade secrets are treated throughout the world like a ... Read More

Open innovation is a key ingredient to the development of valuable intellectual property. Research institutions, universities, and private businesses work in close collaboration with one another, sharing confidential business information, processes, and trade secrets in order to create content. But while open innovation is a boon to creativity it is ... Read More

Part I of this series covered (1) Food Marketing Institute v. Argus Leader Media, 139  S.Ct. 2356 (2020) in which the Supreme Court held that commercial or financial information that is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy ... Read More

The primary purpose of the Defend Trade Secrets Act (DTSA) is to provide federal remedies to individuals and companies that have had their trade secrets misappropriated. That is not, however, its sole purpose. One of the DTSA’s more controversial provisions actually protects certain alleged misappropriators by precluding DTSA liability when ... Read More

Sometimes it seems that trade secrets are always fighting for respect. I recently ran into a friend who teaches at a European university. He somehow found a way to squeeze into the conversation a pronouncement: “You know, trade secrets are not property.” Stay with me; this gets interesting. I sighed, ... Read More

In general, a trade secret is any information used in business if the owner has taken reasonable measures to keep such information secret, and the information derives independent economic value, from not being generally known to, and not being readily ascertainable through proper means by the public. Almost every state ... Read More

After a busy year for non-compete regulation at the state level, the Federal Trade Commission (FTC) held a public workshop last Thursday in Washington D.C. to examine the legal basis and economic support for a contemplated FTC rule restricting the use of non-compete clauses in employment agreements. A link to the ... Read More

In the midst of nationwide efforts to reform the use of non-compete restrictions, a recent decision from the Eastern District of Pennsylvania illustrates the broad approach courts may take when enforcing restrictive covenants against high-level executives. In an order denying an appeal to the preliminary injunction he issued earlier this ... Read More

According to Merriam-Webster, the “Word of the Year for 2019 is “they” when used in the singular, typically to avoid ascribing a gender to the person being referred to. The larger point is this: language matters. Since this is a space dedicated to secrecy, let's consider how we use language ... Read More

An ongoing, headline-grabbing trade secret theft prosecution against a Chinese spy is also quietly presenting a, say, disquieting attempt by prosecutors to stretch the law on what it is required to plead and prove.  On the civil side, when a plaintiff sues for trade secret theft, there’s almost always a ... Read More

Trade secret theft is often an inside job. Employees who know they’re about to leave for a competitor or start their own competing business will sometimes try and get an unfair head start by taking their employer’s confidential information—customer lists, strategic plans, etc.—as they head out the door. A necessary ... Read More

MillerCoors (beer maker of Coors Light and Miller Lite) and Anheuser-Busch (“AB”) (competing beer maker of Bud Light) have been embroiled in a contentious federal district court litigation in the W.D. of Wisconsin since March 2019. MillerCoors filed a lawsuit against AB for false advertising and trademark dilution shortly after ... Read More

Several weeks ago, the International Trade Commission (ITC) announced that Chief Administrative Law Judge (ALJ) Charles Bullock issued a Notice of Initial Final Determination recommending that certain memory modules manufactured and imported by SK Hynix, Inc. and its subsidiaries should be excluded from importation into the United States. As is ... Read More

This week in Other Barks & Bites: the Federal Circuit strikes down a district court’s finding of design patent infringement on summary judgment; the USPTO advises trademark attorneys to monitor filings to prevent against the unauthorized use of their names; the U.S. Copyright Office issues final rules eliminating options for ... Read More

Imagine the following scenario: You have an idea for a new mobile application. As adoption of the app picks up, so does your business, and you hire more employees to provide sales and support assistance. You are on your way to transforming your startup into a successful business. Needing additional ... Read More

This week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions ... Read More

Recent multi million-dollar jury verdicts on trade secret misappropriation claims reflect that there can be significant risk to companies when employees leave or joint development relationships dissolve. Coupled with the passage of the federal Defend Trade Secrets Act of 2016, which created a federal civil cause of action for such ... Read More

As reported by Trade Secrets Watch last month, several states (including Maryland, Maine, New Hampshire, and Rhode Island) recently passed legislation curtailing the use of non-compete agreements.  Now, the federal government wants in on the action. On October 16, 2019, Sens. Chris Murphy, D-Conn., and Todd Young, R-Ind., reintroduced the ... Read More

A federal district court judge in Chicago sentenced Robert O’Rourke, a former employee of iron bar manufacturer Dura-Bar, to one year and one day in prison last week for stealing trade secrets.  Well, not quite.  O’Rourke was convicted on February 25 of seven counts of stealing and attempting to steal ... Read More

The Patent Trial and Appeal Board (PTAB) recently issued its first-ever preliminary guidance on motions to amend claims filed by patent owner Sanofi and, although the substituted claims haven’t escaped an obviousness challenge from Mylan, patent owners might be able to use that guidance as a roadmap for their own ... Read More

This week in Other Barks & Bites: US Inventor will host an inventor rally during AIPLA’s Annual Meeting to protest the PTAB; the Federal Circuit vacates dismissal of infringement case against Sirius XM; the USPTO updates subject matter patent eligibility guidelines, changes TEAS access, and seeks participants for a beta ... Read More

In August 2019, federal prosecutors indicted Feng Tao, a Chinese scientist conducting research at the University of Kansas, on fraud charges. The indictment may not appear notable at first glance. But when viewed against the backdrop of the Trump administration’s escalating trade war and the Department of Justice’s “China Initiative,” ... Read More