Protecting your trade secrets is essential to ensure your competitors do not use your valuable secrets for their benefit. With the Defend Trade Secrets Act of 2016, trade secrets are now afforded access to federal protection. Our intellectual property attorneys work with clients to identify trade secrets, assess vulnerabilities in trade secret protection mechanisms and, if necessary, enforce trade secrets through litigation.
Trade secret enforcement is gaining greater importance in the field of intellectual property as a result of recent United States Supreme Court decisions seen as limiting patent enforcement options. Whereas patent protection requires the full disclosure of an innovation, trade secrets cannot be disclosed in a non-confidential way. The owner of an innovation must choose between these two options to protect that innovation.
What is a trade secret?
Under the Defend Trade Secrets Act of 2016, a trade secret is a formula, pattern, compilation, program, code, device, method, technique or process, (1) that has independent economic value, (2) not generally known to the public, (3) not readily ascertainable through proper means and (4) reasonable efforts are taken to maintain its secrecy.
For example, the Coca-Cola formula is considered a trade secret because Coca-Cola has gone to great lengths to protect the secrecy of its valuable soda formula. While many have tried, no one has been able to recreate the exact formula. The formula for Coca Cola® remains a protected and enforceable trade secret after more than 100 years. That is a stark contrast from the term for patent protection, which is 20 years. Trade secrets are also the subject of state law.
How do I take reasonable steps to protect my trade secret?
There is no specific list of what steps constitute “reasonable steps.” In general, limiting access to the information deemed a trade secret is necessary. Case law provides some guidance but the reasonableness must be assessed on a case-by-case basis. This is where Caseiro Burke can help. We will sit down with you and discuss all information you view as having value to your business and that you believe is not known by your competitors. We will provide a comprehensive analysis to identify your trade secrets. We will also identify any vulnerabilities in your trade secret protection, and will provide you with suggestions to minimize those vulnerabilities.
What is trade secret infringement?
Trade secret infringement disputes can be litigated at both the state and federal level. Under the Defend Trade Secrets Act of 2016, an owner of a trade secret may bring a lawsuit in federal court against an individual and/or a company by establishing:
- The trade secret was misappropriated;
- The trade secret is related to a product or service; and
- The product or service is used OR intended for use in interstate or foreign commerce.
The Defend Trade Secrets Act of 2016 provides the owner of the trade secret the ability to seek a “civil seizure” of the trade secret without notifying the accused. This is an enormously powerful remedy available to the owner of the misappropriated trade secret. Stopping others from disseminating the trade secret through this seizure protects the value of the trade secret. Other remedies include injunctive relief, monetary and punitive damages.
If a trade secret has been misappropriated, the owner of that trade secret must file a lawsuit in federal court no more than 3 years from the date the misappropriation was discovered OR should have been discovered by reasonable diligence.
If you believe someone has stolen your trade secret or you have received a threat of an impending trade secret infringement lawsuit, it is imperative that you obtain an attorney immediately.