Often companies are faced with a dilemma in protecting their IP—should the company disclose its IP to the world and seek a patent that will protect its IP for a set number of years? Or, should the company keep the IP a secret perpetually and protect it through state and federal trade secret laws? The answer is typically not one or the other; but, instead, a complex combination of the two. This article outlines a few thorny issues that can come up when balancing these two types of IP protections: READ MORE
Trade secret protections are a powerful tool for companies seeking to police international theft of their intellectual property. READ MORE
Can defendants use anti-SLAPP statutes to dismiss meritorious trade secrets misappropriation lawsuits? A recent decision by the Fifth District Court of Appeals in Dallas suggests not.
Numerous states have passed some form of anti-SLAPP legislation to prevent parties from using litigation as a tool to silence individuals from exercising their First Amendment rights. Texas, in particular, enacted the Texas Citizens Participation Act (“TCPA”) back in 2011 to “protect citizens from retaliatory lawsuits that seek to silence or intimidate them for exercising their rights in connection with matters of public concern.” The TCPA provides an avenue for individuals to summarily dispose of such lawsuits designed to chill their First Amendment rights. READ MORE
This May was the fourth anniversary of the Defend Trade Secrets Act (DTSA), signed into law by President Obama on May 11, 2016. The DTSA does not preempt state laws and plaintiffs can still bring cases under their state’s trade secrets law, but the DTSA has played a big role in the increased number of trade secret cases in recent years. According to Lex Machina’s Trade Secret Litigation report, which covered federal district court data from 2010 to 2019, the DTSA caused a 30% increase in trade secret case filings between 2015 and 2017 and those numbers have remained steady. READ MORE
Last week, we examined the recent Third Circuit decision in Advanced Fluid Systems, which held that a trade secrets plaintiff did not need to be an owner or a licensee of the alleged trade secrets to bring a state law misappropriation claim under Pennsylvania’s UTSA—all that was required was that the plaintiff had “lawful possession” of the trade secrets. In so holding, the Third Circuit added to the weight of the Fourth Circuit’s similar analysis of Maryland’s UTSA in DTM Research, L.L.C. v. AT&T Corp., 245 F.3d 327 (4th Cir. 2001).
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 risk of employee and third-party IP theft. 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 the China Initiative Conference last month. The DOJ’s campaign recently intensified with two new, gripping indictments. 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 hotly contested point of proof on whether the alleged stolen material is really a trade secret. It’s well-established, though, that when the government charges a defendant criminally with the inchoate forms of trade secret theft—attempt or conspiracy being the two spelled out under the Economic Espionage Act—the government has no burden to prove that the underlying information was actually a trade secret. (Loyal readers will recall our recent post on United States v. O’Rourke, where the defendant tried to argue otherwise at sentencing.) Now, in a brief filed just last week, the government seems to be taking this one step further and arguing that it has no duty even to identify the trade secrets at issue. 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 AB aired an ad during Super Bowl LIII saying that MillerCoors uses corn syrup during brewing. MillerCoors’ lawsuit alleges that this ad was part of a “false and misleading advertising campaign” designed to deceive consumers into thinking they will consume corn syrup if they drink Coors Light and Miller Lite, which MillerCoors denies. 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 trade secrets, but moved for a new trial. In her October 11 order, Judge Andrea Wood denied the motion, holding that the trial evidence demonstrated O’Rourke’s intent to steal and use trade secrets—even if some of the proprietary information stolen did not actually constitute a trade secret. READ MORE