Theft of trade secrets has been a federal crime since the 90’s. In response to American companies’ secrets being spirited away by departing employees and foreign-born economic spies, the federal government lent its considerable prosecutorial power to matters that had been very difficult for companies to handle.
Since then, the possible penalties were upped in 2012, but companies were still left wanting. Yes, threat of going to federal prison is a great deterrent, but the aggrieved company needed to turn over the matter to the US Attorney’s office. What if the thief was able to get a plea bargain in exchange for a promise to turn over others who might have nothing to do with your company’s stolen information? Plus, your secrets are still gone. Too bad.
Effective May 11, 2016, however, companies now have another weapon at their disposal. The Defense of Trade Secrets Act establishes a uniform national trade secret protection standard. This is big. Prior to then, everything was decided on a state-by-state basis. The DTSA gives companies the flexibility to now file either under state law or federal law for misappropriation of trade secrets related to products or services “used in, or intended for use in, interstate or foreign commerce.” The DTSA’s new uniform legal framework should yield greater consistency in trade secret enforcement decisions.
At least as far as protecting against wrongful takings? Trade secrets are finally on the same playing field as patents and copyrights have always been. If you choose to bring a civil lawsuit, you can get the wrongfully taken information seized. You can later decide to hand the thief to the US Attorney’s office, too.
Entrepreneurs, rejoice! You have more choices to protect your fledgling company.