The DTSA at One: An Empirical Study of the First Year of Litigation Under the Defend Trade Secrets Act

52 Pages Posted: 6 Feb 2018 Last revised: 20 May 2018

See all articles by David S. Levine

David S. Levine

Elon University School of Law; Stanford University - Center for Internet and Society

Christopher B. Seaman

Washington and Lee University School of Law

Date Written: January 1, 2018

Abstract

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals of creating more robust and efficient litigation vehicles for trade secret misappropriation victims, thereby helping protect valuable American intellectual property assets.

We find that, similar to state trade secrets law, the paradigm misappropriation scenario under the DTSA involves a former employee who absconds with alleged trade secrets to a competitor. Other results, however, raise questions about the new law’s ability to effectively address modern cyberespionage threats, particularly from foreign actors, as well as the purpose (or lack thereof) of trade secret law more broadly. We conclude by discussing our data’s implications for trade secret law and litigation, as well as commenting on the DTSA’s potential impact on the broader issues of cybersecurity and information flow within our innovation ecosystem.

Keywords: trade secrets, trade secrecy, misappropriation, intellectual property, IP, information, cybersecurity, cyberespionage, innovation, DTSA, Defend Trade Secrets Act, empirical, litigation, remedies, preliminary injunction, TRO, patent, copyright, trademark, unfair competition

JEL Classification: K11, K12, K19, K41, O31, O33, O34, O38

Suggested Citation

Levine, David S. and Seaman, Christopher B., The DTSA at One: An Empirical Study of the First Year of Litigation Under the Defend Trade Secrets Act (January 1, 2018). 53 Wake Forest Law Review 106 (2018), Washington & Lee Legal Studies Paper No. 2018-03, Available at SSRN: https://ssrn.com/abstract=3112679

David S. Levine

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

HOME PAGE: http://hearsayculture.com

Stanford University - Center for Internet and Society

Palo Alto, CA 94305-8610
United States

HOME PAGE: http://cyberlaw.stanford.edu/blogs/levine/

Christopher B. Seaman (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
540-458-8520 (Phone)

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