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Revista de Prensa: Artículos

martes, 28 de febrero de 2017

Trade Secrets 2.0

R. Mark Halligan
Partner at FisherBroyles LLP


The enactment of the Defend Trade Secrets Act (DTSA) of 2016 in the United States creates a new paradigm and is a watershed event in intellectual property law. U.S. President Barack Obama signed the bill into law on May 11, 2016, and the DTSA now applies to any misappropriation that occurred on or after that date.

A trade secret is any technical or nontechnical information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.

The law allows trade secret owners to file a civil action in a U.S. district court for trade secret misappropriation related to a product or service in interstate or foreign commerce. The term “owner” is a defined statutory term. It means “the person or entity in whom or in which rightful legal or equitable title to, or license in, the trade secret is reposed,” according to the DTSA.

Under the DTSA, in extraordinary circumstances, a trade secret owner can apply for and a court may grant an ex parte seizure order (allowing property to be seized, such as a computer that a stolen trade secret might be saved on) to prevent a stolen trade secret from being disseminated.

With this development in the law, trade secret assets are no longer stepchild intellectual property rights. Trade secret assets are now on the same playing field as patents, copyrights, and trademarks. The DTSA reinforces that a trade secret asset is a property asset by creating this new federal civil cause of action.

And there is no preemption. The U.S. district courts have original jurisdiction over a DTSA civil cause of action, which coexists with a private civil cause of action under the Uniform Trade Secrets Act (UTSA). The UTSA—most recently amended in 1985—codified common law standards and remedies for trade secret misappropriation at the state level.

The DTSA also coexists with criminal prosecutions under the U.S. Economic Espionage Act of 1996 (EEA), which makes it a federal crime to steal or misappropriate commercial trade secrets with the intention to benefit a foreign power.​

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