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BFV Perspectives, Noncompete & Trade Secrets, | Nov 12, 2015

Greetings from the Trade Secret Summit, Part 1

I am in Boston attending the Trade Secret Summit hosted by the Trade Secret Committee of the American Intellectual Property Law Association.  There have already been a number of excellent and informative presentations.  A few thoughts and takeaways thus far:

  1. Cybersecurity risks come from all directions.  Many tend to think of China as presenting the greatest cybersecurity risk for corporate America, but in addition to rogue nation-states, the potential threats come from many other sources: malicious company insiders; competitors; transnational organized crime; “hacktivists”.
  1. Efforts to federalize trade secret law remain ongoing.  There appears to be a real possibility that a federal trade secrets law will be enacted in early 2016.
  1. Proposed federal trade secret legislation still includes the much-discussed ex parte seizure order provision.  To convince a federal judge that an ex parte seizure order is necessary, a plaintiff will essentially have to convince the court that the misappropriator would not comply with a normal TRO (i.e., one issued after notice to the misappropriator, or even an ex parte order that prohibits destruction or dissemination of the misappropriated trade secrets until there is a full TRO hearing).  This strikes me as a high burden.  If the trade secrets legislation passes with the ex parte seizure order provision included, it will be very interesting to see how receptive federal judges are to issuing ex parte seizure orders.
  1. There have been lots of efforts in the last year at the state law level directed at regulating non-competes. Some of the legislation and proposed legislation favors enforcement; other legislation and proposed legislation is more employee-friendly.  This dichotomy reflects the divergent views on whether greater enforcement of non-competes hurts or helps economic development.

More to come as the Summit continues…

BFV Perspectives, Noncompete & Trade Secrets, | Nov 12, 2015
Neal F. Weinrich
Neal F. Weinrich

Neal Weinrich knows noncompetes and trade secrets inside and out. A shareholder at Berman Fink Van Horn, Neal counsels clients in all industries on matters involving restrictive covenants, trade secrets and other competition-related issues.