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However, Pooley disagreed, noting the differences between protections available under patent law versus trade secret law. Sandeen argued that there is indeed a “trade secret troll” threat in abusive litigation tactics and that those ready and willing to litigate over misappropriation of trade secrets in federal court are essentially “trolls” in a manner similar to patent trolls. Some questions the various senators posed throughout the hearing inquired into the alleged existence of “trade secret trolls,” application of the DTSA domestically and abroad, and risk of harm of the ex-parte seizure provision of the DTSA. Moreover, Pooley noted that small businesses would not be at risk of harm under the DTSA as opposers to the bill have argued, but instead would benefit because they, too, need recourse in dealing with theft of its trade secrets nationwide. Pooley also acknowledged that despite the adoption of the Uniform Trade Secrets Act (UTSA) by 48 states, each state has its own variations, which affects time and monetary costs in terms of obtaining required orders and serving out-of-state defendants. The final witness, Pooley, who rather vehemently disagreed with the opposition’s point of view, stated that because the DTSA’s proposed narrow application, risk of litigation abuse would be low because restraining orders and injunctions are normally difficult to win. She said the DTSA, especially its seizure provision, would open the door to abuse and hikes in litigation costs. Professor Sandeen stated the DTSA would cause more problems than it would solve. He also voiced Corning’s support of the DTSA based on the fact that state trade secret laws are not harmonized, litigating in many different states actually increases litigation costs, and service of process on a trade secret thief is difficult, if not impossible at times. Cochran noted two benefits to adoption of the DTSA: 1) victims of trade secret theft would have access to federal courts and 2) future trade secret dissemination and/or destruction would be curbed.īeall testified that one of its most successful products has been unprotected under patent law for many years, but its trade secrets help keep its version of the product at the top of the market. We discussed this case in our latest trade secret law update. Professor Sandeen was the only witness in opposition to the adoption of a uniform, federal trade secret law, namely, the DTSA.Ĭochran voiced DuPont’s support of the DTSA, especially in light of trade secret theft it recently faced with regard to its Kevlar products.
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James Pooley, Principal at James Pooley, PLC and Professor Sharon Sandeen, Hamline University School of Law. Tom Beall, VP and Chief IP Counsel at Corning Corp.
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Senator Patrick Leahy dovetailed off of Grassley’s comments, voicing his support for the protection of trade secrets especially protection for small businesses, like those in his home state of Vermont, with valuable trade secrets.Īfter the introductory statements, the four witnesses that appeared at the hearing were announced: Karen Cochran, Chief IP Counsel at E.I. is approximately $5 trillion with annual losses owing to trade secret theft amounting to over $3 billion. He noted that the total value of trade secrets in the U.S. companies have faced due to the theft of their trade secrets. Grassley emphasized the hefty financial losses U.S. Senator Chuck Grassley opened the hearing, outlining the importance of protecting the “lesser known but increasingly important form of intellectual property:” trade secrets. Earlier today, the Senate Judiciary Committee held a hearing regarding the protection of trade secrets through the creation of a federal civil cause of action, which would allow trade secret victims to sue for trade secret misappropriation in federal court.