The Importance of Protecting Trade Secrets: Why Having a Strong Intellectual Property (IP) Attorney Is Essential

  • Jun 14 2018

What makes your business distinct, and hopefully superior, to other businesses of the same type are the methods, formulas, and techniques that give your company independent economic value. Clearly, protecting these aspects from the prying eyes of others who would like to steal your practices and surpass your earnings is crucial to maintaining your financial edge. Trade secrets, therefore, must be carefully guarded. The best way to do this is through the engagement of a practice of IP attorneys with a well-deserved reputation for being trustworthy and highly successful.

In choosing the best firm for the job, you should consider their ability to protect trade secrets through both nondisclosure and non-compete agreements and to pursue legal remedies for the theft of trade secrets in both state and federal courts. Over recent decades, the theft or misappropriation of trade secrets has become a federal as well as a state crime through the Economic Espionage Act (EEA) of 1996 and the Defend Trade Secrets Act (DTSA) of 2016. Both of these federal laws leave the state trade secret laws as they were, while providing the groundwork for national legal action.

Definition of a Trade Secret

A trade secret is an information that meets the following criteria:

  1. It is not generally known to the public
  2. Its holder makes reasonable efforts to maintain its secrecy
  3. Its secrecy provides economic benefit to its holder

As any reliable IP attorney will inform you, trade secrets include “all forms and types of financial, business, scientific, technical, economic, or engineering information” as long as the owner has taken steps to keep such information secret and that such information can be shown to provide economic benefit. Some states additionally require that trade secrets remain in continuous use.

For the newest federal trade secret law (DTSA) to be applicable, the trade secret must be used in interstate or foreign commerce.

Plaintiffs Have the Advantage in Trade Secret Cases Involving the DTSA

Unlike many state laws, the DTSA does not require the plaintiff to identify the trade secrets precisely prior to commencing discovery. This method was conceived to protect plaintiffs since they are not forced to give full disclosure of their trade secrets in public. This makes sense because, otherwise, plaintiffs in such cases would be pressured to disclose the very secrets they are trying to protect. As a matter of fact, in some cases, the plaintiff will be permitted to obtain an ex parte seizure order to keep the trade secret from being spread, without the defendant ever having an opportunity to be heard. There are, as one would expect, strict regulations concerning when the plaintiff is given such an advantage. This is one reason why it is so important to have a highly experienced, well-skilled IP attorney at your side during a trade secret dispute. Contact Scully, Scott, Murphy, & Presser, PC to discuss your case with an experienced attorney.

Posted in: Trade Secrets