October 23, 2018

Is the Time Finally Right? Congress Again Considers a Civil Federal Trade Secrets Law

On July 17, 2012, Senators Herb Kohl (D-WI), Chris Coons (D-DE) and Sheldon Whitehouse (D-RI) introduced the Protecting American Trade Secrets and Innovation Act of 2012. It is similar to a number of bill previously introduced by Sen. Kohl and would provide for a federal civil remedy for theft of trade secrets by amending the criminal Economic Espionage Act. According to Senator Kohl’s press release: “This legislation expands the legal options for victims of economic espionage and trade secret theft by allowing victims of trade secret theft to bring civil lawsuits against the offender in federal court. Today, companies that fall victim to economic espionage and trade secret theft often can only bring civil actions in state court, under a patchwork of state laws, to stop the harm or seek compensation for losses. While state courts may be a suitable venue in some cases, major trade secret cases will often require tools available more readily in Federal court, such as nationwide service of process for subpoenas, discovery and witness depositions. In addition for trade secret holders operating nationwide, a single federal statute can be more efficient than navigating 50 different state laws.”
Although the bill could be stronger and more clearly written, especially if it did not simply graft-warts and all-the civil remedies onto an existing federal criminal law, it is certainly a step in the right direction and, hopefully, Congress will consider this bill more seriously than it considered previous bills. There is no doubt that foreign economic espionage is increasing and that the federal government has neither the inclination, nor the resources to investigate and prosecute all cases that should be prosecuted. A federal law, especially one that provides for nationwide service of process may provide a better remedy to a victim of theft of trade secrets than the current patchwork of state laws.

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