On Monday, the U.S. Senate acted to strengthen legal protection against the theft of trade secrets, which costs U.S. business more than $300 billion a year. The Senate unanimously passed the Defend Trade Secrets Act (DTSA), sponsored by Senators Orrin Hatch (R-Utah) and Chris Coons (D-Delaware), which would open the federal courts to trade secrets litigation.
The DTSA would bring protection of trade secrets more in line with protection of other types of intellectual property, including copyright, trademark and patent. Under current U.S. law, claims for misappropriation of trade secrets are the only types of intellectual property claims for which plaintiffs do not have a right to pursue in federal courts.
The DTSA provides remedies for trade secret misappropriation, including injunctive relief, compensatory damages, punitive damages and attorneys' fees in the event of willful or malicious misappropriation. Notably, the DTSA allows plaintiffs to seek ex parte government seizure of trade secrets to preserve evidence before notifying the defendant of a lawsuit.
The U.S. House of Representatives Subcommittee on Courts, Intellectual Property, and the Internet is currently considering an identical trade secrets bill. Similar legislation was unsuccessfully attempted in 2014, but supporters of the DTSA, including many businesses and the U.S. Chamber of Commerce, hope that the unanimous Senate approval indicates the legislation will pass this session. The DTSA will only become law upon passing both houses.
Bass, Berry & Sims will continue to monitor and provide updates on trade secrets legislation, as well as other legal developments that impact the protection of intellectual property rights. For questions about the DTSA or protecting your intellectual property, please contact an attorney on our Intellectual Property team.