May 31, 2017 Articles

Tips for When Not to Bring a Claim under the Defend Trade Secrets Act

State law—and state courts—often remain a plaintiff’s best hope of avoiding, halting, and remedying trade secret misappropriation.

By Kevin C. Quigley

Your scientists were so preoccupied with whether or not they could that they didn’t stop to think if they should.

—Jurassic Park (1993)

The Defend Trade Secrets Act (DTSA), signed into law by President Obama on May 11, 2016, is one of the most significant developments in intellectual property law of the past few years. The DTSA creates a federal cause of action for trade secret misappropriation. Its most buzzed-about provision permits a plaintiff, upon a heightened showing, to seek an ex parte seizure of misappropriated property by court order. In general, however, the DTSA largely parallels the model Uniform Trade Secrets Act (codified, in one form or another, by 48 states, Massachusetts and New York being the two exceptions). For that reason, pleading a DTSA claim may strike a trade secret plaintiff’s counsel as a familiar and accessible replacement for a state law claim. And, because the DTSA expressly does not preempt state trade secret law, tacking on a DTSA claim to state law misappropriation claims may seem like an even lower-risk proposition.

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