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April 25, 2022 - One of the most perplexing questions in trade-secret law relates to proof of "ownership" of the trade secret. The holder of a trade secret must prove the ownership status for each alleged trade secret. Understanding trade secret ownership issues including the allocation of ownership between employers and employees is critical in trade secrets litigation.
The existence of a trade secret precedes ownership of a trade secret. If a piece of information is generally known in the trade, or if it is readily ascertainable by proper means, then ownership becomes irrelevant because anyone can disclose or use this piece of information. The world owns it.
There is no definition of "owner" in the Uniform Trade Secrets Act (UTSA). For years, the "ownership" issue was ignored. The trade secret plaintiff did not plead ownership. The alleged misappropriator did not plead lack of ownership. Many trade secret misappropriation lawsuits would have had different outcomes had ownership been a prima facie element of plaintiff's cause of action for trade secret misappropriation.
Things have changed now. The "ownership" element of proof is now front and center. The Defend Trade Secrets Act (DTSA) defines the...
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