Trade Secrets

Subscribe to Trade Secrets via RSS
purchased on istock 2026.02.20

If worrying about our soon-to-be AI overlords wasn’t enough, two rulings recently dropped that illustrate the risk that an AI platform’s terms of use and privacy policy limitations may pose to confidential information. On February 17, 2026, in U.S. v. Heppner, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ruled that AI-generated documents were not entitled to either attorney/client or attorney work product protection, citing waiver of confidentiality due to the defendant’s consent to Anthropic’s privacy policy. And on January 5, 2026, in a case that has not received the same notoriety, Trinidad v. OpenAI, Inc., 2026 U.S. Dist. LEXIS 1129, 2026 WL 21791, Judge Jon Tigar of the U.S. District Court for the Northern District of California dismissed that case because he found that the plaintiff forfeited her trade secrets claim under OpenAI’s terms of use.

These cases not only serve as a cautionary tale for trade secret owners but a reminder of the impact that terms of service–the fine print many of us scroll through and consent to when securing access to a website or online tool–may have in future trade secret disputes. This begs the following question: should courts reconsider applying those terms of service and privacy policies so broadly in situations of confidentiality? Read on to find out . . .Continue Reading Yet Another Reason to Fear AI? Two recent decisions provide a reminder of the risks of its use for trade secrets

I’m excited to announce that I will be the panel chair and moderator for “Artificial Intelligence & Trade Secrets” at the New York City Bar Association’s Trade Secret Symposium 2026 on Friday, February 20, 2026 at 9:00 a.m. ET. I’ll have the honor of facilitating a panel composed of AI experts Matthew D’Amore of Cornell…

Picture1-1-1

Do three important decisions signal a trend? Well, they just might, particularly when they are considered with recent appellate decisions setting aside other runaway trade secret verdicts. Last month, the Virginia Supreme Court affirmed the Virginia Court of Appeals’ reversal of Appian Software’s $2 billion verdict against its competitor Pegasystems, agreeing that the trial court failed to properly instruct the jury on the burden of proof for Appian’s unjust enrichment damages. This followed the December 8, 2025 decision by the U.S. Court of Appeals for the Federal Circuit affirming U.S. District Court Judge Sandra Lioi’s vacatur of a $63 million jury verdict against The Goodyear Tire & Rubber Company because the plaintiffs failed to sufficiently identify several of their trade secrets. And most recently, on January 21, 2026, the U.S. Court of Appeals for the Fifth Circuit affirmed U.S. District Court Judge Andrew Hanen’s decision to vacate a $75 million jury verdict because the plaintiff Trinseo Europe elected not to apportion the damages for each of its trade secrets.

As I discuss below, those decisions are consistent with a growing number of other appellate and trial decisions critically examining the grounds giving rise to these mega-verdicts. So what is going on here? Read on to find out.Continue Reading Three More Mammoth Trade Secret Verdicts Fail to Survive Appeal: The Trade Secret Litigator Reads the Tea Leaves (Part I)

For those looking for a comprehensive webinar on developments in trade secret and restrictive covenant law by experts from around the country, please join me for the first annual “Trade Secrets and Restrictive Covenants Symposium” for the Ohio State Bar Association on Wednesday, January 28, 2026 from 1:00 p.m. ET to 4:15 p.m. ET. Distinguished…

Episode 27 of Fairly Competing is out!

In this episode, recorded on January 3, 2025, Ben, Russell and I take a look back on some of the more significant developments in trade secret and restrictive covenant law in 2024, and try to give some insight into what to expect in 2025. We discuss the…

Trade secret litigation is expensive. But trade secret owners often don’t have the resources to pay for the litigation necessary to protect their rights against a larger adversary with deeper pockets.

Enter: litigation funding.

Litigation funding can level the playing field and provide the resources necessary for the trade secret owner to recover damages and…

I will be speaking at the American Intellectual Property Law Association’s 2024 Annual Meeting on Saturday, October 26, 2024 from 9:00 a.m. – 10:45 a.m. ET at the Closing Plenary Session as part of the IP Year in Review panel at the Gaylord National Resort in National Harbor, Maryland.

It will be a dynamic session…

Remedying the overseas misappropriation of U.S. companies’ trade secrets, particularly in China, was one of Congress’ core goals when it enacted the Defend Trade Secrets Act (DTSA) in 2016. But despite that goal, some district courts have wrestled over the extent to which the DTSA could apply to misconduct that occurred abroad. Now, in Motorola Sols., Inc. v. Hytera Commc’ns Corp. Ltd., the U.S. Court of Appeals for the Seventh Circuit has resoundingly affirmed the extraterritorial reach of the DTSA, finding that worldwide sales of a product incorporating misappropriated trade secrets may be recoverable as damages. The Seventh Circuit has ruled that, under the DTSA, liability can accrue for acts committed wholly abroad if some act in furtherance of the misappropriation occurred in the U.S. In the Motorola case, the marketing of the product at trade shows in the U.S. was a sufficient act in furtherance of the overseas misappropriation for a damages award including sales from around the world.Continue Reading Motorola v. Hytera: The Seventh Circuit Upholds Damages for Worldwide Sales under the Defend Trade Secrets Act

I will be providing a 1-hour webinar for the Ohio State Bar Association entitled “Strategies for Defusing Trade Secret Disputes” on Friday, August 16, 2024 at 1:00 p.m. ET. Here’s a description of the presentation:

What can employers and employees do to avoid litigation and minimize their risk once they are ensnared in a…

On Thursday, March 21, 2024, I will be speaking at the Defense Research Institute’s 2024 Business and Intellectual Property Litigation Super Conference on a panel, “Tips from the Trenches: Litigating and Trying Trade Secret Cases as a Plaintiff and Defendant, What Every Business Needs to Know,” with Ben Fink of Berman, Fink, Van Horn P.C. …