Here are the noteworthy trade secret, restrictive covenant and cybersecurity posts from the past month or so:
The Defend Trade Secrets Act
- The U.S. District Court for the Eastern District of Texas has found that certain deer registry information qualified as a combination trade secret under the DTSA and Oklahoma’s version of the UTSA, as explained by Michael Weil and Tierra Piens for Orrick’s Trade Secrets Watch blog.
- The issue of whether the DTSA applies to misappropriation that may have taken place prior to the DTSA’s enactment has been one of the more frequent areas of litigation under the DTSA. Jonathan Shapiro of Epstein Becker has a summary on these cases for Law360.
Legislative and Regulatory Updates
- Nevada has bucked the trend of states that are diluting or limiting the availability of restrictive covenants. Robert Milligan and Lauren Leibovitch describe the particulars of the new statute in Seyfarth’s Trading Secrets Blog.
- In Venable’s Trade Secrets & Transitions Blog, Cody Lonning and Douglas Mishkin detail the Trump Administration’s decision to withdraw from the burgeoning fray over non-competes at the federal level.
Trade Secret Litigation Procedure
- Because of the real or perceived differences between states over the scope and breadth of restrictive covenants, disputes over the governing forum and the enforceability of forum selection clauses appear to be increasing. Seyfarth’s Erik Weibust and Dallin Wilson have a post detailing one of the many races to the courthouse involving a California litigant for Seyfarth’s Trading Secrets Blog.
- In a must-read post for litigators, Joshua Gilliland has a post in his Bowtie Law Blog on preservation orders to ensure third parties preserve evidence that may be relevant to pending trade secret litigation.
- For those litigating in Texas, Leiza Dolghih writes in her North Texas Legal News blog about a recent federal decision holding that an employee did not violate Texas’ civil theft statute when he allegedly downloaded his former employer’s trade secrets.
- Anyone reading this blog is no doubt aware of recent media criticism of the use of non-competes, which have been criticized as impediments to innovation and potentially being misused against low-wage employees. In this debate, California — which forbids non-competes — is frequently held out as an exemplar, in support of the argument that California’s ban on non-competes has fueled the success of Silicon Valley. In an important post in his Fair Competition Blog, Russell Beck cautions about making too many assumptions about the impact of non-competes on innovation in California, noting that trade secret laws have been aggressively used by employers as a proxy for non-competes in California.
- In light of the present non-compete climate, Bernie Fuhs, Philip Korovesis and Haley Jonna of Butzel Long have put together a client alert that details the public relations consequences that can accompany a poorly-drafted or improperly-enforced non-compete, along with steps that employer can take to avoid becoming the next Jimmy-Johns or Goldfish.
- Peter Steinmeyer has a nice summary in Epstein Becker’s Trade Secrets & Non-Compete Blog of a recent Illinois case that declined to find that a mass LinkedIn notification qualified as a violation of a former employee’s non-solicitation agreement. Ben Fink of Berman Fink Van Horn also provides his thoughts on the same case.
Historical and Social Trade Secret Commentary
- For those frustrated history professors, Jim Pooley has a wonderful post in Orrick’s Trade Secrets Watch about an 18th century journeyman Samuel Slater who might have helped spark the industrial revolution in the United States by stealing his former mentor’s trade secrets.
- Ohio State law professor Rebecca Wexler has written a sobering op-ed piece for The New York Times on the reluctance of computer developers to share the underlying information that they have assembled that is used to by law enforcement officials to evaluate parole and probation requests by inmates. According to Professor Wexler, when the developers have declined to provide their analytics, they have invoked their trade secret rights.
Patents v. Trade Secrets
- A recent European Union Intellectual Property Organization (EUIPO) survey has found that companies prefer trade secret protection over patent protection, as reported by Dugie Standeford for Intellectual Property Watch.