October 23, 2018

Congress Again Considers Civil Trade Secrets Legislation

Its that time of the year again when Congress considers legislation that would provide for civil remedies for theft of trade secrets. The Defend Trade Secrets Act of 2015 (S. 1890 and H.R. 3326) introduced on July 29, 2015, is based on the same standards for trade secret protection, and remedies for misappropriation, that are found in the Uniform Trade Secrets Act and the Economic Espionage Act of 1996 (“EEA”).
While similar attempts to pass such legislation have failed almost on a yearly basis, this year may finally prove different since the current legislation is supported by companies and associations in a broad array of industries, including biopharmaceutical, software, semiconductors, consumer goods, medical devices, automobiles, heavy equipment, chemicals, aerospace and agriculture. In addition, there is a new found recognition of the importance to protect trade secrets as a complement to the already existing federal statutes that protect trademarks, copyrights and patents

The Defend Trade Secrets Act would create a uniform, national standard for trade secret misappropriation, harmonizing U.S. law, and provide companies with the ability to protect themselves. In limited circumstances, the law would provide for ex parte seizure relief when time is of the essence and the thief would not obey an injunction.

Last year, Sen. Orrin Hatch, R-Utah, and Sen. Christopher Coons, D-Del., introduced the Defend Trade Secrets Act of 2014 (S. 2267), and similar legislation, the Trade Secrets Protection Act of 2014 (H.R. 5233), was subsequently introduced in the House of Representatives. Both the Senate and House Committees on the Judiciary held hearings on the legislation. The House Judiciary Committee voted without dissent to report the bill favorably just before the elections, and it was never considered by the full House.

The legislation, introduced last week by Sens. Hatch and Coons and four other senators in the Senate, and by Rep. Doug Collins, R-Ga., and Rep. Jerrold Nadler, D-N.Y., with 14 cosponsors in the House. It reflects a consensus that among our most valuable currency in the global marketplace is our knowledge and creativity.


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