Letter to Editor: Clarifications Regarding Defend Trade Secrets Act

I saw your recent post regarding the Defend Trade Secrets Act, and as an intellectual property law expert I’d like to submit a response in order to clarify some important points about the legislation that I think were missed in the article.  

In the April 5 issue of Utah Policy, you reported on “critics” of the Defend Trade Secrets Act, a bill that was adopted by the Senate the day before on a unanimous 87-0 vote. You quoted a law professor who claims the bill is not likely to achieve its goal because it “doesn’t actually address international cyber-espionage.”

In fact, the law is not directed specifically at cyber-espionage, but more broadly at giving U.S. industry the tools necessary to protect their trade secrets, which in the modern digital economy have become more valuable and more vulnerable to theft. Today, trade secret cases have to be filed in state courts, where laws and procedures vary. Under the new bill, companies will have the option to file in federal courts with a single set of rules that apply across the country. This will be especially useful when suing foreign actors who have taken secret information from U.S. businesses.

The only opposition to this legislation has come from a group of law professors. As a practicing lawyer who has handled hundreds of trade secret disputes, I was called as a witness during Senate deliberations to respond to their arguments. As I explained then, the Defend Trade Secrets Act simply fills a gap in our laws which have always allowed federal court filings for other kinds of intellectual property. It applies well-established principles and standards in a way that will make trade secret litigation more efficient, more predictable and less expensive.

All of the legitimate objections of the law professors have been answered with agreed amendments that are now part of the bill. Its bipartisan, unanimous support in the Senate demonstrates that this is one of those unusual cases where the need is great and the solution is straightforward. The Defend Trade Secrets Act should be approved by the House of Representatives so that U.S. businesses can have a more practical way to protect their know-how from theft.

Best regards,
James Pooley, Menlo Park, CA