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The Intellectual Property StrategistFeaturesIntellectual PropertyLegislationLitigationRegulationTrade Secrets

The DTSA's Jurisdictional Nexus, Three Years In

By Conor Tucker

The Defend Trade Secrets Act (DTSA) requires pleading a connection between a trade secret, a product or service, and interstate commerce. But failure to prove such a connection divests the district court of subject matter jurisdiction. This article summarizes the first three years of cases discussing the jurisdictional element and explores implications.

The DTSA has a limited statutory scope: it protects trade secrets if they “relate[] to a product or service used, or intended for use in, interstate or foreign commerce.” 18 U.S.C. 1836(b)(1). Courts have interpreted this as a statutory limitation on federal protection for trade secrets. Congress presumably could have protected all “trade secrets affecting commerce,” but it did not. Congress protected trade secrets that are “related to a product or service used in, or intended for use in, interstate of foreign commerce.” 18 U.S.C. 1836(b)(1) And since federal jurisdiction is limited and defined by statute, federal jurisdiction only reaches trade secrets with sufficient relationship to a product or service flowing in interstate commerce.

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