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Tag: Trade Secrets

Washington and Lee Law Review - Trade Secrets

Article

by Elizabeth A. Rowe

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm even where the loss has been compensated monetarily. Moreover, where injunctions are requested but denied, the lack of irreparable harm seemed to have been the factor most often articulated as the reason for the denial.

Development

by David S. Levine and Sharon K. Sandeen

Within the past few years, the U.S. federal government has been forced to confront the massive but hard-to-quantify problem of foreign and state-sponsored cyberespionage against U.S. corporations, from Boeing to small technology start-ups, and (as of this writing) perhaps Sony Pictures Entertainment. As part of that effort, Congress has taken up the Defend Trade Secrets Act and the Trade Secret Protection Act, which would create a private cause of action under the federal Economic Espionage Act. This Article addresses the possibility of introducing trolling behavior—using litigation as a means to extract settlement payments from unsuspecting defendants—to trade secret law through creation of a federal private trade secret misappropriation cause of action. Like the existing problem of patent trolls, trade secret trolling has the potential to undermine the structure of trade secret law and create serious problems and costs for innovators across all industries. Thus, this Article addresses the heretofore unexplored link between patent and trade secret trolling established by this legislation. It assesses in detail the benefits and downsides of creation of a federal trade secret misappropriation cause of action and, for the first time, the risk of trolling.

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