June 19, 2018 Articles

The Defend Trade Secrets Act after Two Years: A Practical Perspective on Its Development

What to watch for at least until the DTSA’s three-year statute of limitations catches up to its 2016 effective date.

By T. Brandon Waddell

Two years ago, President Obama signed the Defend Trade Secrets Act (DTSA) into law. The act creates a federal cause of action to protect trade secrets, the last of the four major types of intellectual property (along with patents, copyrights, and trademarks) that was not protectable by a federal claim. Since its enactment, the DTSA has been invoked in hundreds of cases. The contours of the claim, however, are still being worked out.

In this article, we address some aspects of the DTSA that might be interesting and helpful to practitioners. After providing a brief overview of the act, we look first at the types of claims a plaintiff can plead under the DTSA, as well as the types of allegations on which those claims may rise or fall. Next, we look at one of the DTSA’s most interesting features—“civil seizure” of trade secret materials as a remedy available to private parties—and the types of cases in which that remedy has been successfully invoked. Finally, we note that, although the DTSA was intended to create uniformity in trade secret law across the country, old divisions from state trade secret laws have crept into federal jurisprudence, setting up the likelihood of Supreme Court battles in the future.

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