September 15, 2020 Articles

A Guide to Trade Secret Protection without a Non-Compete

In a world where employees routinely jump ship to competing companies, courts struggle over whether a presumption of inevitable disclosure of trade secrets protects core intellectual property or instead acts as a backdoor to a missing or illegal noncompetition clause.

By Joseph Casino, Thomas Landman, and Rikesh Patel

Companies can effectively use trade secret protection to respond to an environment in which their competitors seek to hire their best and brightest stars. Trade secret law protects confidential formulas, patterns, compilations, databases, programs, devices, methods, techniques, and processes. The ability to protect such secrets may help a company preserve its economic and strategic advantages over competitors while hindering competitors’ efforts to make and market viable competing products. Trade secret law protects against unauthorized disclosure and may be used instead of, or as a complement to, patent and copyright protections, which inherently involve public disclosure. As companies focus on protecting trade secrets, trade secret protection is growing: Most state legislatures have adopted the Uniform Trade Secrets Act (UTSA), Congress has enacted the Defend Trade Secrets Act of 2016, Pub. L. No. 114‑153, 130 Stat. 376 (DTSA), and courts have expanded common-law protections.

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