David C. Bohrer, a partner in the Silicon Valley office of Merchant & Gould, authored an article that was published in the Santa Clara High Technology Law Journal, Volume 33, Issue 4 on April 22, 2017.
The stepping off point for the article is that the great majority of IP theft is committed by “insider” employees or business partners who have taken a position with a competitor. The former employer is often interested in obtaining a court order enjoining threatened trade secret misappropriation and sees significant advantages to bringing the action in federal court under the Defend Trade Secret Act (DTSA) of 2016. The problem is that there is little or no federal court precedent available to guide the determination whether it would be worth the time and money to bring such a claim. The proposed solution is using California decisions granting TROs and preliminary injunctions under California’s version of the Uniform Trade Secret Act as a source of decisional law for federal courts seeking guidance on the evidence needed to establish threatened misappropriation under the DTSA. This makes sense since California and the DTSA share a pro-employee mobility philosophy. The article concludes with a brief survey of the types of evidence that are most likely to establish threatened misappropriation under the DTSA.
View the article on the Santa Clara High Technology Law Journal website
David Bohrer, Threatened Misappropriation of Trade Secrets: Making a Federal (DTSA) Case Out of It, 33 Santa Clara High Tech. L.J. 506 (2017).
Available at: http://digitalcommons.law.scu.edu/chtlj/vol33/iss4/3