he American Intellectual Property Law Association recently completed its Trade Secrets Summit in Miami, Florida. The topics for the conference included:
- A legislative update
- Best practices for identifying trade secrets in litigation
- Developments in trade secret trials and changing trends
- Arbitration of trade secret disputes
- Recent innovations in trade secret protection technologies and forensics (Alex Meier – panelist)
- Damages in trade secret cases (Marcus Mintz – panelist)
- Protecting artificial intelligence generated inventions as trade secrets
- Criminal and government investigations of trade secret theft
- What constitutes a trade secret versus confidential information or general skills and knowledge
We always enjoy learning about how parties, lawyers, and judges are addressing novel or complex issues relating to trade secret litigation or protection. Some of our major takeaways from the conference were:
- Increased interest in damages. Litigants are increasingly seeking monetary damages rather than injunctive relief for misappropriation. This trend is driven in no small part by some of the blockbuster damages awards generated by misappropriation cases over the last decade.
- Strong preference for court over arbitration. Conference attendees had a near-universal preference for litigating misappropriation cases in court rather than arbitration when asserting a trade secrets misappropriation claim. While arbitration can offer increased confidentiality and more bespoke attention, limitations on discovery and the perceived lower value of injunctive relief generally make arbitration a less desirable venue than court for trade secrets plaintiffs.
- Don't stick with defaults for retention and monitoring. Many companies follow their default or out-of-the-box settings for network monitoring and exfiltration flags. Companies should consider whether different or longer-duration records should be kept—particularly when the companies have a largely remote workforce.
- Engage your damages expert early. A skilled, experienced damages expert can help identify a damages theories early and assist in making necessary disclosures under applicable civil procedure rules. An expert will identify necessary discovery inquiries and identify key admissions to obtain in depositions. Testifying experience is critical because damages testimony often comes at the end of testimony and must be concise, clear and persuasive to fact finders.
- Garden-variety misappropriation very unlikely to garner criminal attention. While misappropriation by a nation-state actor will often generate interest in a potential criminal investigation, the garden-variety case where an employee leaves a company and misappropriates information is unlikely to pique the government's interest.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
