Intellectual property law, even with the constant tide of ever-evolving technological advancement and consumerist culture onslaught, remains to this day mainly confined to four areas: copyrights, trademarks, patents, and trade secrets. Of these, trade secrets are the least discussed by a wide margin for several reasons, not least of which is that the law is meant to keep trade secrets . . . well . . . secret.
Thus far, trade secret law has differentiated itself from the other three areas of intellectual property, which are all protected primarily by federal statutes, namely, the Copyright Act, the Lanham Act, and the Patent Act, by allowing private causes of action for trade secret misappropriation solely in accordance with state law. Though every state except for New York and Massachusetts has adopted, in substantial part, the Uniform Trade Secrets Act (UTSA), variations continue to exist in each state statute and each state’s interpretation. Truly uniform protection of trade secrets and remedies for their misappropriation currently exist only at the criminal level under the federal Economic Espionage Act of 1996 (EEA). While the EEA does purport to punish thieves of trade secrets, it does not allow for a private, civil cause of action for victims of such theft. This is the gap that the newly-proposed Defend Trade Secrets Act (DTSA) aims to bridge. The DTSA was proposed last month as a federal remedy to the state patchwork of trade secret protection and to provide federal protection against trade secret theft in a world where most entities have national or even international businesses, customers, and competitors.
The DTSA has several promising characteristics. First, it would bring trade secret law in line with the other areas of intellectual property law with an overdue introduction of a uniform federal statute for trade secret protection. Second, of paramount importance in the current international corporate landscape, it would allow for that missing federal private cause of action for trade secret misappropriation, as long as the perpetrator also violated the EEA or the trade secret is related to interstate or foreign commerce. Third, the DTSA provides a host of remedies for victims, including injunctive and monetary relief, as well as ex parte seizures of goods and orders to preserve evidence from destruction by the perpetrator.
The DTSA also has several shortcomings, however, chief among them the fact that it specifically fails to override or preempt any state law. Thus, the patchwork of trade secret protection would linger even with the adoption of the DTSA and perpetuate the currently lacking legal landscape of trade secret law. Regardless, however, the DTSA would certainly be a step in the right direction, and if nothing else, may get people talking about trade secrets again.