With the passage of the federal Defend Trade Secrets Act, trade secret owners can choose to pursue actions for misappropriation under state law in state court, under federal law in federal court, or under both state and federal law in federal court. In many ways, the Defend Trade Secrets Act complicates a trade secret owner's litigation strategy at the outset of the case, presenting complex choices between different laws and venues. Trade secret owners must carefully consider their specific objectives, facts and circumstances when evaluating any relevant differences between state and federal substantive law (e.g., statute of limitations, available remedies, etc.) as well differences between applicable state and federal procedure (e.g., time to trial, pretrial motions, preliminary relief, enforceability of judgments, etc.). In this article, Finnegan attorney John M. Williamson focuses on one of the myriad issues facing trade secret owners when choosing between parallel laws and venues—copyright preemption. Where the facts surrounding trade secret misappropriation might give rise to a challenge based on federal copyright preemption, a claim under the Defend Trade Secrets Act (as opposed to a claim under state law exclusively) should ensure that the trade secret claim survives a preemption challenge.
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.
