A trade secret can be defined as information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage.
The Restatement of the Law (Third) describes trade secrets as a formula, pattern, compilation of data, computer program, device, method, technique, process, or other forms of embodiment of economically valuable information. Almost anything can be a trade secret as long as it meets three criteria: (i) secrecy, (ii) independent economic value, and (iii) reasonable effort to maintain secrecy. Trade secrets can be patentable (process, formula) or non-patentable (customer list, pricing).
Trade secret law in the United States has historically been governed by common law. In the mid-1960s the American Bar Association launched an effort to draft a uniform trade secrets law, later known as the Uniform Trade Secrets Act. By 1988, many States had modeled their trade secrets statutes on the Uniform Trade Secrets Act (“UTSA”). In 1996, Congress passed the Economic Espionage Act of 1996 which made it a federal crime to misappropriate trade secrets.
Until 2016, trade secret litigation was governed by the state, rather than federal statute. The Defend Trade Secrets Act of 2016 brought trade secret litigation to the federal cause of action. Trade secret misappropriation often resembles trademark and copyright infringement with respect to the elements of damages courts award; however, rights associated with trade secrets are markedly different from rights associated with other intellectual property. A trade secret owner cannot exclude others from recreating the trade secret through legal and legitimate means.
In most instances, the owner of a trade secret must show that the claimed secret information is not generally known, confers an economic benefit from its secrecy and that the owner has consistently made reasonable efforts to maintain the secrecy of the confidential information.
Valuation of trade secrets can be a difficult task: how is value assigned to this type of intellectual property? How can one find an IP valuation expert who understands the acceptable financial or economic methods to properly evaluate damage? At Hampton IP, we understand and utilize all acceptable damage valuation methodologies to help provide indisputable evidence and litigation support.
Why Work with Our Expert Consultants?
Hampton IP is well-versed in all laws, regulations, and other rulings that pertain to trade secrets and misappropriation of trade secret remedies. We understand the various issues that govern the remedies involving trade secrets, including laws created by the National Conference of Commissioners on Uniform State Laws, the Uniform Trade Secret Act (UTSA), and the Defend Trade Secrets Act.
Our trade secret misappropriation and expert consultants are recognized for providing established intellectual property valuation insight. To learn how we can be of assistance in your particular matter, call us today.
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