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Friday, May 13, 2016
Defend Trade Secrets Act of 2016
I teach an intellectual property survey course that covers patents, copyrights, trademarks, and trade secrets. Each year, I explain to my students that one of these things--trade secrets--is different from the others because it is governed primarily by state, rather than federal, law. But that has now changed. This week, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA), which creates a private cause of action for trade secret misappropriation. While the federal government has had the power to enforce trade secret laws through criminal and civil actions, private parties can, for the first time, sue for trade secret misappropriation pursuant to federal law.
Supporters argued that the DTSA was necessary to create uniformity in trade secret law, ensure a federal forum for trade secret cases, and bring the United States into compliance with various international agreements. Supporters further claimed that trade secrets will be better protected with both a robust public and private enforcement regime (a topic I address in a forthcoming article in the patent context). While the Act passed the House and Senate easily, prior versions introduced in 2014 and 2015 met with significant criticism from legal academics, both through letters to Congress (here and here) and through traditional legal scholarship (see, e.g., Peter S. Menell, Tailoring a Public Policy Exception to Trade Secret Protection; Christopher B. Seaman, The Case Against Federalizing Trade Secrecy). Congress listened to concerns about the potential impact on labor mobility and protection for whistleblowers, and addressed them in the final bill.
Professor Dennis Crouch at Patently-O has provided a detailed discussion of the DTSA for those who might be interested in learning more about the new law.
Posted by Megan La Belle on May 13, 2016 at 02:14 PM | Permalink
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