42 Law Professors Oppose The Defend Trade Secrets Act

November 17, 2015 · by · in Trade Secrets

I have frequently called the Defend Trade Secrets Act, a bill to create a new federal civil trade secret cause of action, the most important IP development that you’re not paying attention to. I hope that will change. Today, 41 of my colleagues and I joined a letter opposing the Defend Trade Secrets Act. Read the letter and David Levine’s post about the letter.

Although Congress has been working on this topic for several years, the bill still contains numerous defects, both in terms of substantive policy and ambiguous/overreaching drafting. What’s most frustrating to me is that most folks in DC think the Defend Trade Secrets Act is not controversial. This reflects the typical skews in Congress’ information sources. A handful of large trade secret owners, and their lawyers, have vigorously supported the law, but most other trade secret owners have sat on the sidelines (often in befuddlement about what Congress is trying to accomplish) or are completely unaware of the bill and its potential implications. If Congress were to consult a larger group of trade secret owners, rather than simply those banging on their doors demanding MOAR RIGHTS, I think the bill proponents would hear a different (or, at least, more nuanced) story. As academics, we’re doing the best we can to spotlight the bill’s defects, but even a large group as ours won’t sway Congress as effectively as large trade secret owners.

In the very near future, the Washington & Lee Law Review Online will hold an online symposium on the Defend Trade Secrets Act. I have submitted an essay to that symposium called “Ex Parte Seizures and the Defend Trade Secrets Act,” in which I systematically deconstruct the proposed provisions enabling ex parte seizures against alleged misappropriators. The ex parte seizure provision is so bizarre, and so clearly unnecessary/unhelpful, that it highlights the broken nature of Congress’ consultative efforts. You’ll have to wait for the full essay for the gory details; for now, I’m using the continued presence of the ex parte seizure provision as a barometer of whether Congress really understands what it’s doing.

Related posts:

* Federal Trade Secret Bill Re-Introduced–And It’s Still Troublesome (Guest Blog Post)
* Some Specific Problems With The Proposed Federal Trade Secret Law (Comments From a Reader)
* A Bibliography About Federal Trade Secret Law Reform (Guest Blog Post)
* Do We Need a New Federal Trade Secret Law?