I know from experience that there is often a disconnect between what companies think constitute “their” trade secrets and what actually qualifies for trade secret protection and I think the proposed federal law is apt to increase that disconnect. The misunderstanding about the appropriate scope and nature of trade secrets leads to lawsuits being filed based upon weak or illegitimate claims, often against new and small businesses that do not have the resources to fight. It is the voices and experiences of these companies that are not being heard by Congress, most likely because they do not have high-priced lobbyists or perhaps because they were forced out of business. But it is not just small companies that need to be concerned about a change in trade secret law; large companies (even large trade secret owners) can be subjected to weak claims of misappropriation by others, highlighting the across-the-board need for balance in trade secret policy.

Strong IP rights are great when you own them but not so great when they are being asserted against you. So before arguing for stronger trade secret rights and more enforcement, it is best for companies to consider what side of the equation they will be on; the answer is probably “both.” Federal courts may do as good a job of protecting the interests of defendants in such cases, but without an existing body of federal common law on the subject, I have my doubts. Plus, I am not convinced there is a problem that needs to be fixed that is not being addressed under the current scheme of state laws. Procedural convenience and a preference for federal courts strikes me as very weak justifications for changing 150+ years of trade secret law, policy, and procedure.