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Federal Civil Trade Secret Legislation
Businesses regularly lose precious data, sometimes even “the crown jewels,” through trade secret theft by departing employees, unscrupulous contractors and others. Although trade secret theft is estimated to cause billions of dollars in damage every year, no federal civil claim for trade secret misappropriation currently exists. Despite the fact that patents, trademarks and copyrights are protected by federal laws creating private rights of action, trade secrets ' which for many businesses are the lifeblood of their revenue ' are not. State laws govern these assets, and they are inconsistently applied. Relief may be in sight.
On July 29, 2015, the Defend Trade Secrets Act of 2015 (DTSA) was introduced in the House of Representatives (H.R. 3326) and Senate (S. 1890). The Act would establish a federal civil cause of action for trade secret misappropriation, enabling plaintiffs to assert trade secret claims in federal district courts. While similar legislation has been introduced in previous years, there are reasons to think that the bill could pass in some form this Congress given the bipartisan support the measure enjoys.
To date, except for trade secrets, all of the primary forms of intellectual property ' patents, copyrights and trademarks ' are subject to federal legislation defining their associated rights and providing for civil enforcement in federal courts. By contrast, civil enforcement of trade secrets has been governed exclusively by state law, in the form of the Uniform Trade Secrets Act (UTSA) that has been adopted in 48 states (New York and Massachusetts are the only remaining holdouts), or common law. Although the UTSA forms the basis for the law in most of the country, states have varied from the basic act, enacted parts of it and added others, diminishing to some extent the uniformity the UTSA seeks to establish.
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