For many lawyers practicing outside the United States, intellectual property protection and risk are most often associated with patents, trademarks and copyrights. Trade secrets are frequently treated as the forgotten stepchild—associated with employment law and contracts rather than as an independent body of law. But since the passage of the Federal Defend Trade Secrets Act (DTSA) in 2016, trade secret issues and disputes have steadily increased, and are now increasingly impacting both foreign companies doing business in the U.S. and domestic companies doing business abroad.
Patent litigation has declined over the past decade, while trade secret case filings have grown significantly. Court decisions and administrative remedies have left patents more vulnerable to invalidation under §§ 101 and 112, and much of the juice has been squeezed from the fruit of massive patent litigation campaigns by non-practicing entities, sometimes referred to as “patent trolls.” These developments, coupled with uncertainty about whether patents can effectively cover emerging technologies such as artificial intelligence, have driven many companies and lawyers to increase their reliance on trade secret law.
The creation of a federal claim for trade secret misappropriation under the DTSA has reinforced this shift by introducing more predictability into a previously fragmented legal landscape. Within a year of its passage in 2016, trade secret case filings rose by 25%, and last year over 1,200...
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