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Peter Toren | Experienced Intellectual Property Lawyer

Release 29 to Intellectual Property and Computer Crimes

Law Journal Press just published Release 29 to my book Intellectual Property and Computer Crimes. The Release addresses developments involving the Defend Trade Secrets Act of 2016 (DTSA), including cases where courts have held that pre-enactment DTSA allegations of a misappropriation of a trade secret coupled with post-enactment continued use are sufficient to sustain a claim under the DTSA. Further discussion of the DTSA addresses the rights of trade secret owners, including the provision that a court may not authorize the disclosure of any information that the owner asserts to be a trade secret.

In addition, the Release expands the book’s discussion of sentencing guidelines under the Economic Espionage Act (EEA) by detailing the steps to be taken to determine the appropriate guideline range using the U.S. Sentencing Guidelines. The Release also examines sentencing guidelines for trademark counterfeiting, including the base offense level, infringement amount, risk of bodily harm, and the use of encryption, as well as an analysis of the upward adjustment requirement for a finding that the defendant has abused a position of trust or use of a special skill.

Other topics discussed in this Release include:

The Ninth Circuit in United States v. Liew in which the defendant was charged with trade secret misappropriation from DuPont as an agent of the People’s Republic of China.

Difficulties in attempting service of process of foreign parties for conspiring to steal trade secrets.

Mandatory Victims Restitution Act (MVRA) requirement that if property cannot be returned to a victim, the defendant must pay the victim the value of the property either on the date of the damage or the date of sentencing.

In order for the government to establish criminality for receiving buying or possessing a trade secret knowing the same to have been stolen without authorization, they first must establish the defendant “knew” that the items was stolen.

Ways the government may prove intent by showing the circumstances in which the defendant made use of the trade secret.