Trade Secrets and Non-Compete Observations from AIPLA Trade Secrets Summit – Part 1

Posted by Benjamin I. Fink on

1. Judges will bend over backward to protect information that is a trade secret, but often will not enjoin people from working for a competitor absent compelling circumstances.

2. Judges really don’t like when people steal information from their employers.

3. Judges understand the urgency in non-compete and trade secret cases and will hear emergency injunction requests quickly, but expect the lawyers to be honest with them about the true nature of the emergency.

4. Choosing trade secret protection has certain advantages over patent protection especially in light of the changes to patent law effectuated by the America Invents Act (AIA). Advantages of trades secrets include unlimited duration, immediate protection (no prosecution delay), not prosecution expense and no required public disclosure.

5. The AIA eliminated the best mode defense to a patent claim. This allows the IP owner to withhold certain aspects of the process as a trade secret even when seeking patent protection.

6. Start thinking about damages early in a trade secrets case, not just the injunctive relief you are seeking.