October 22, 2012 Articles

Proving a Reasonable Royalty for Trade-Secret Misappropriation

Calculating damages comes with inherent difficulties and inconsistencies in the law from one jurisdiction to the next.

By Chip Brooker

As the proverbial catchall of intellectual property, trade secrets are nebulous by their very nature, protecting hazier forms of intellectual property, such as business methods; manufacturing processes and formulas; customer, supplier, and vendor information and lists; marketing information and strategies; and “know-how,” among other things. By contrast, patents, copyrights, and trademarks each protect a discrete form of intellectual property, enjoy the consistent application of federal statutory and common law, and unlike trade secrets, do not lose value when they are publicly disclosed. As a result, any attempt to calculate damages for trade-secret misappropriation comes with inherent difficulties and inconsistencies in the law from one jurisdiction to the next, despite the extensive adoption of the Uniform Trade Secrets Act.

Premium Content For:
  • Litigation Section
Join - Now