Texas Federal Court: Copyright Law Doesn’t Preempt Trade Secrets Claim Where “Extra” Elements Exist

We’ve blogged on trade secret preemption before (here and here, for instance), but we’ve usually focused on trade secrets claims preempting other types of claims, and not the other way around.

But, as the cowboy in the cult-classic film The Big Lebowski noted, “Sometimes you eat the bear, and sometimes, well, he eats you.” So, this time, we are discussing a recent case that involved the question of when trade secret claims are preempted by Copyright Law. Read More

One Step Closer: European Parliament Legal Affairs Committee Approves Trade Secret Directive

As Trade Secrets Watch has previously reported, new rules regarding the protection of trade secrets are on the horizon for the European Union. In November 2013, the European Commission announced a proposed Directive on trade secrets and confidential information. Around six months later, in May 2014, the Council of the European Union agreed on a revised draft Directive. Reception of the Trade Secrets Directive has been mixed. Read More

For Here or To Go? Senators Introduce Bill to Ban Noncompete Agreements, Increase Mobility For Sandwich Makers and Other Low-Wage Workers

Congress is getting into the non-compete business.  Citing the use of non-compete agreements by companies such as Jimmy John’s sandwich shops, Senate Democrats recently introduced a bill—called the Mobility and Opportunity for Vulnerable Employees (MOVE) Act—that would amend the Fair Labor Standards Act (FLSA) to prohibit the use of non-compete agreements for low-wage employees. Read More

Securing your Network: Claiming Contacts as Trade Secrets

The paradigmatic trade secret is something that is obviously technical, such as source code or the formula for Coke.  Though trade secrets protection is not limited to technical trade secrets, it can sometimes be tricky to claim trade secrecy over non-technical trade secrets, such as customer or employee contact lists, that are commercially valuable yet may seem more accessible and therefore less secret.  California Code of Civil Procedure Section 2019.210 compounds the issue by requiring a plaintiff to make a detailed disclosure of trade secrets as a precondition to frame the discovery to come.  Section 2019.210 therefore immediately places an often-challenging decision upon the plaintiff—selecting what it should claim as trade secrets in litigation. Read More

The New Space Race: Protecting Trade Secrets on the Final Frontier

Space: The final frontier.  For millennia, people have wanted to explore the great unknown of outer space, and series like Star Trek and Star Wars continue to our fuel our fantasies about what lies beyond our stratosphere.  This fascination, as well as countries’ desires to maintain their military prowess, led to the First Space Race after World War II.  Today, while NASA’s dominance may have fizzled out, private companies have embarked on a commercialized space race to gain market dominance from their designs. Indeed, the House of Representatives recently passed the SPACE Act to enable commercial space mining activities. Read More

Fighting Back: Identifying Risks Posed by an Angry Current or Former Employee

Something lost is always in the last place you look (by definition).  It can also sometimes be in the first.

Although technology has made it possible for outsiders to manipulate and infiltrate your company’s systems and obtain confidential and trade secret information in novel and subtle ways, a lingering, persistent threat to a company’s confidential information and trade secret comes from unhappy employees, both during the time of their employ and after separation. Read More

Will Your Cyber Insurance Respond When You Need It Most?

As many companies are considering purchasing cyber insurance, they often wonder: “Will my insurer be there when I have a data breach?”  Cyber insurers have generally been good in paying claims. But the recent lawsuit featured in this Orrick Client Alert demonstrates that as the landscape evolves, insurers may refuse to cover breach costs by arguing that insureds failed to meet “minimum requirements” for cybersecurity. Tending to cybersecurity policies and procedures before breaches occur is more important than ever. Read More

Will We See Federal Trade Secret Legislation Passed This Year?

In January of this year, we noted that trade secret protection has lately been on the minds of lawmakers in Washington, and that federal trade secret legislation was very close to being enacted.  While nothing is pending at the moment, we can expect renewed efforts similar to two bills that were introduced in Congress last year – one each in the Senate and House.  In anticipation of such efforts, we thought it would be useful to review what happened in 2014. Read More

Kolon Finally Served With Criminal Summons in Korea, Subsequently Settles for $360 Million

On April 30, 2015, Kolon Industries finally resolved two long-standing disputes regarding its alleged misappropriation of trade secrets related to DuPont Co.’s bullet-proof Kevlar Material.  The settlement resolved a six-year civil dispute with competitor DuPont, as well as an Economic Espionage Act criminal indictment that had been pending for three years.  According to the terms of the plea agreement filed with the court, Kolon will pay $275 million in restitution to DuPont and $85 million to the government in fines. Read More

Snowden Strikes Back: Mass Collection of Telephony Metadata Struck Down By the Second Circuit

As post-Snowden America well knows, for some years now the National Security Agency (NSA) has been collecting bulk telephone metadata under the authority of Section 215 of the PATRIOT Act and aggregating it into data banks subject to government query. Under the “business records” provision of this law, the NSA has been collecting all kinds of information about the numbers you dial, how often you dial them, and how long your conversations are—and it’s been doing so for years. Read More