Legislation

LEGISLATIVE UPDATE: Senator Proposes New Bill to Create Civil Cause of Action for Foreign Theft of Trade Secrets

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Just before the Thanksgiving holiday last week, Senator Jeff Flake (R-Ariz.) introduced the Future of American Innovation and Research Act, a new trade secrets bill that would allow American trade secrets owners to sue entities who misappropriate trade secrets outside the United States, or who misappropriate trade secrets on behalf of foreign entities.  The bill tracks the Uniform Trade Secret Act’s definitions of “trade secret” and “misappropriation,” and includes standard remedies of damages and injunctive relief.  One interesting addition is that it would READ MORE →

CYBERSECURITY UPDATE: New Rules Require Defense Contractors to Protect Technical Information

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The U.S. Department of Defense issued final rulemaking on November 18, 2013 that will require DOD contractors to protect from attack confidential technical information on their computer systems, and to report and cooperate with DOD in the event that this information is compromised through a cyberattack.  The rules come nearly two years after draft rules were first announced and in the midst of continuing public concern about the threat of state-sponsored trade secrets theft. READ MORE →

Uniform Protection of Trade Secrets in the EU? Hooray! Ole! Hourra!

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European Union officials have just issued a draft set of rules that would impose uniform trade secret guidelines across the EU, motivated by trade pact negotiations with the United States and concerns about state-sponsored spying, according to The New York Times.  Although the leaders of the European Commission have yet to sign off on the proposed rules, they plan to adopt them tentatively on November 27.  The rules are then subject to a long legislative negotiating process before they come into force. READ MORE →

Fracking Trade Secret Rules: A Tug of War Without Winners

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In the approximately 31 states with known reserves amenable to hydraulic fracturing, or “fracking,” a tug of war is being waged between an oil and gas industry seeking to protect its proprietary processes and environmental groups that want to know the secret sauce.  Because fracking was carved out of federal oversight in 2005, determining where the balance lies has been left to the states.  Not surprisingly, consensus is not the order of the day.  Trade Secrets Watch prepared a state-by-state chart that highlights the key provisions of the states currently requiring disclosure.  To view the chart, click here: flipbook / PDF.

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GERMAN TRANSLATION: Making Sense of Germany’s Criminal and Civil Trade Secret Laws

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Germans are famous for their love of order.  But German trade secret law is untidy.  Like many EU countries and like the United States, Germany has no national trade secret law per se.  Its criminal and civil laws provide for broad trade secret protection — if you know how to navigate them.

A quick primer on Germany’s trade secret laws is available here.

GIVE AND TAKE: Lofgren’s Twin Trade Secret Bills Would Curtail Actions Under One Law, Expand Them Under Another

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When Rep. Zoe Lofgren, the Silicon Valley Democrat, introduced a pair of bills last month on trade secret misappropriation, we puzzled over her purpose.  Was this a response to the White House’s call for improved federal legislation to protect U.S. trade secrets?  Did the measures mark the start of a comprehensive federal civil “Trade Secrets Act” that would put trade secrets on par with other federally protected intellectual property such as patents, trademarks, and copyrights?

Trade Secrets Watch decided to investigate and tapped our congressional sources for the back story.  Turns out our musings were wrong.

First, a quick backgrounder on federal trade secret protection (and lack thereof): The federal government has declined to go all-in on protecting U.S. trade secrets, leaving this area primarily governed by state law.  When it comes to trade secrets, federal law consists of a patchwork of acts that leave yawning gaps in legal protection.  For example, the federal Economic Espionage Act, known as the EEA, prohibits trade secret theft but is solely a criminal law — it doesn’t provide for a federal civil cause of action (i.e., a right allowing private parties to sue).  And the Computer Fraud and Abuse Act, known as the CFAA, only covers certain types of thefts involving unauthorized access to computers.  It provides for criminal prosecution and grants a victimized company the right to sue.  But in a case last year (United States v. Nosal), the Ninth Circuit U.S. Court of Appeals interpreted the CFAA narrowly, finding that it was primarily intended to curtail hacking and that it does not bar employees from stealing trade secrets from their employers’ computers in more run-of-the-mill cases of trade secret theft.  READ MORE →

BILL BANDWAGON: Senators Draft Measure to Expand the Economic Espionage Act

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Yet another federal trade secrets bill may soon join the growing stack of legislation already under consideration in Congress.  This proposed bill would make modest changes to the Economic Espionage Act (“EEA”), which designates the theft of a trade secret a federal crime.

We emphasize that the “discussion draft” by Sens. Sheldon Whitehouse (D-R.I.) and Lindsey Graham (R-S.C.) is merely that—a draft bill that has not been introduced.  Still, the fact of the proposed bill, and the fact that the co-sponsors felt compelled to issue a press release about the measure while it is still on the drawing board, confirm that trade secret thieves (along with patent trolls) are the boogeymen du jour on Capitol Hill.

This proposed bill, if introduced and enacted, would incrementally extend the EEA’s application to foreign trade secret theft.  READ MORE →

Italian Renaissance: Birthplace of Invention Updates Its Trade Secrets Laws

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Italy, the country that enlightened the world with the Renaissance, has given us some of the greatest inventors and geniuses in history, from Leonardo da Vinci and Galieo Galilei to Georgio Armani.

But Italy is learning that a great invention is sometimes only as good as the trade secret laws that protect it.  Italy is modernizing its trade secret laws to bring them into greater conformity with international standards such as the TRIPS Agreement. A quick primer of Italy’s trade secret laws is available here.

White House Issues Another Strategy Plan to Protect U.S. Trade Secrets

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Last week, the White House unveiled its “2013 Intellectual Property Enforcement Coordinator Joint Strategic plan,” a roadmap to help the Department of Homeland Security combat intellectual property theft in the next three years.  This is the Administration’s second joint strategic plan on IP (its first plan issued in 2010), and its fourth statement this year on protecting U.S. trade secrets.

The latest plan reviews the progress made since 2010 and lays out 26 specific action items to strengthen IP protection, increase enforcement efforts, and encourage multi-national coordination.

The 88-page plan covers a lot of ground, taking on issues such as patent trolls and counterfeit drugs.  Trade Secrets Watch reviewed the plan’s implications for trade secret protection—especially in light of the White House’s recent efforts and requests for public comments earlier this year. READ MORE →