The strategy also offers opportunities for increased collaboration with the government. Trade Secrets. The strategy encompasses five action items:. Three main themes emerge from the administration strategy that are important for U. First, the strategy and its supporting documentation highlight how frighteningly real the prospect of trade secrets theft is. The White House report is peppered with references to household name companies that have been victimized by trade secrets theft over the past few years, often at a cost of tens of millions of dollars or more.
Mandated reports from the defense industry to the government indicate a 75 percent increase between FY and FY in reports of suspicious activity aimed at acquiring protected information. Coupled with a recent New York Times article asserting Chinese government involvement in more than attempted cyber attacks on U. According to a report by the Office of the National Counterintelligence Executive, particular targets include companies that possess the following:. Second, the government alone cannot solve the problem. On its face, however, a 29 percent increase in investigations cannot keep pace with a 75 percent increase in attempted trade secret thefts.
Historically, as a result of limited resources, the government has been able to address only a tiny fraction of trade secret thefts, and there is no indication that there will be the massive influx of resources necessary to change this dynamic materially. Indeed, the administration strategy recognizes the need for public-private partnerships on this issue and asks companies and industry associations to develop and adopt voluntary best practices to protect themselves against trade secret theft.
USPTO Trade Secret Symposium | USPTO
And, of course, there are significant drawbacks to any after-the-fact solution, whether relying on government intervention or a private lawsuit. The best solution is to prevent a trade secret theft from ever occurring. Even if that is not possible, having taken strong measures to protect trade secrets will aid success both in any civil litigation against the perpetrator and in any criminal action the government may bring. Entities should consider at least the following types of protective measures:. It also will be important in any future litigation that a company has clearly designated as confidential any materials it may wish to assert are trade secrets.
Third, the new administration approach to trade secrets offers some opportunities for U. The government interest in enhancing law enforcement operations indicates that businesses may have a better chance of encouraging the government to investigate and bring criminal charges under the Economic Espionage Act EEA against the perpetrators of trade secret thefts. The possibility of seeking government involvement is a powerful tool that should be considered and discussed with counsel any time there is a significant suspected trade secret theft.
Obtaining government involvement in specific instances of trade secret theft can allow businesses to take advantage of information learned via government tactics such as undercover investigations and search warrants. It also can significantly enhance any civil litigation—for example, a finding of criminal liability can make a civil outcome a foregone conclusion. For example, it is possible that the time is ripe for an amendment to the EEA currently a federal criminal statute that offers no private right of action to create a federal, private cause of action for misappropriation of trade secrets.
A bill to this effect was introduced in Congress in and did not progress, but two other amendments to strengthen the EEA that passed overwhelmingly in December , plus the recently issued administration strategy, suggest there may be gathering momentum for such a change. Companies, particularly those involved in the power grid or the provision of other utilities or critical systems, should be aware of the possibility of obtaining additional information from the government about threats to protected information.
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New Articles. Your LinkedIn Connections at Firm. Overview of the Strategy The Strategy quotes a note of urgency sounded by President Obama in his State of the Union address: "We cannot look back years from now and wonder why we did nothing in the face of real threats to our security and our economy.
Voluntary Best Practices by Private Industry to Protect Trade Secrets The Strategy observes that "[a]dvancements in technology, increased mobility, rapid globalization, and the anonymous or pseudonymous nature of the Internet create growing challenges in protecting trade secrets. Enhancing Domestic Law Enforcement The Strategy states that the Department of Justice and the FBI have made "investigation and prosecution of corporate and state sponsored trade secret theft a top priority. The Enhancement Act The Enhancement Act was signed into law on January 14, , and significantly increased the criminal penalties available under the EEA for violations that benefit a foreign government.
Potential Future Federal Legislation As noted above, the IPEC is charged with reviewing existing federal law to determine whether enhancements to trade secret protection may be advisable. All rights reserved. Do you have a Question or Comment? Interested in the next Webinar on this Topic? Click here to register your Interest. Daniel P. Email Firm. View Website. Events from this Firm. More from this Firm. More from this Author.
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News About this Firm. Jessica N. The US v. Conjunctively Disjunctive. Patents Comparative Guide. Patents Comparative Guide for the jurisdiction of India, check out our comparative guides section to compare across multiple countries. Chris Coons D-Del. Doug Collins R-Ga. With the growing use and popularity of the internet, more and more people and businesses have made the leap into cyberspace to sell, advertise, or promote their company, name, products, or services. Decision: Xitronix Corp. KLA-Tencor Corp. May 23, In association with. United States.
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