Document Type

Article

Publication Title

Cybaris: An Intellectual Property Law Review

Abstract

To begin the discussion on extraterritoriality and applicable law in trade secrecy cases, Part I provides a short survey of national trade secrecy laws. It demonstrates the many ways in which even countries that all operate under the TRIPS Agreement and generally agree on the availability of protection can nonetheless make divergent policy choices and enact laws that differ in critical detail. In short, this Part exposes how clashes among national trade secrecy laws can easily occur. Part II reviews the limits that modern courts have imposed on the extraterritorial reach of federal legislation and elucidates the Supreme Court’s two-step approach to the question whether Congress intended an enactment to reach activity outside the United States. Part III applies this analysis to trade secrecy cases: Section A considers section 337 actions, such as TianRui, and Section B looks at the fact patterns that arise under the DTSA. These Sections demonstrate how the Supreme Court’s extraterritoriality jurisprudence delimits the reach of federal statutory law. Section C deals with state trade secrecy law and the question of whether states can fill any gaps by furnishing a cause of action in situations that federal law does not reach. We note that states do not tend to approach the issue as one of extraterritoriality, as does the Supreme Court with federal statutes; instead, they frame the question as one of the choice of applicable law. In Section D, we revisit the DTSA. Given its roots in state trade secrecy law, we suggest that a traditional choice of law approach should be considered in federal trade secret misappropriation cases.

First Page

265

Volume

8

Publication Date

2017

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