The Defend Trade Secrets Act of 2016
traction over the years. When we think
about intellectual property, we generally
think copyright, trademark and patents.
Trade secrets may also fall within
the realm of intellectual property, and
generally encompass "any confidential
business information which provides an
enterprise a competitive edge."
commercial secrets.
generally known to others and that would
not be readily ascertainable by proper
persons, of economic value, for which the
creators have an interest to protect.
from state to state. Thus, the Uniform
Trade Secrets Act (UTSA) was developed
and first published by the Uniform Law
Commission (ULC) in 1979 as a means
of creating a uniform framework for trade
secret protections. Since its introduction,
48 states have adopted the UTSA.
Restatement of Torts, the Restatement of
Unfair Competition and the Lanham Act,
largely govern trade secret protections.
Trade Secrets Act of 2016 (DTSA),
intellectual property protections have
now broadened in scope. The DTSA
amends the previously enacted Economic
Espionage Act, and provides for a new
federal cause of action for trade secret
misappropriation.
Pursuant to the DTSA, a trade
secret owner may bring a civil action
related to a product or service used in,
or intended to be used in, interstate or
foreign commerce.
years after the date the misappropriation
is discovered or should have been
discovered by the exercise of reasonable
diligence. Among other things, the
DTSA allows for:
proper showing when necessary
to prevent the propagation or
dissemination of a trade secret.
disclosure of a trade secret when
made to the government for the
purpose of reporting or investigating
a suspected violation of the law
and anti-retaliation whistleblower
protections for reporting employees.
Important to note, under the DTSA,
employees include individuals
working as contractors or consultants.
or an award of damages, including
damages for actual loss; unjust
enrichment, not included in the
actual loss; or in some cases, in
lieu of damages, the imposition of
liability for a reasonable royalty for
the unauthorized use or disclosure
of the trade secret. Where the
misappropriation of the trade secret
is willful or malicious, exemplary
damages are available up to two
times the amount of damages as well
as reasonable attorney fees to the
prevailing party.
knowingly convert trade secret with
intent, including a fine of the greater
of $5 million or three times the
value of the stolen trade secret to the
organization including the research
and design expenses and other costs.
law, and as such, trade secret owners can
choose state and/or federal protection of
their trade secrets.
Cardelli Lanfear P.C. Her practice focuses on
insurance defense, intellectual property and
commercial litigation.
the areas of civil defense, intellectual property
and environmental law. He is a registered
patent attorney with experience in patent,
trademark and copyright litigation.
322 West Lincoln
Royal Oak, Michigan 48067
248.544.1191 Fax
vgujuluva@cardellilaw.com
jnewman@cardellilaw.com