Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence
56 American Business Law Journal (2019 Forthcoming)
32 Pages Posted: 13 Nov 2019
Date Written: October 1, 2019
Over the past decade, eBay’s influence has migrated to other areas of IP. This Article analyzes eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP — for example, the hard-to-quantify risk that disclosure poses to trade secret owners — has lessened eBay’s influence on trade secrecy injunctions. This Article argues that disclosure risks likely justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable harm. However, in cases involving only the unauthorized use of a trade secret — i.e., where a defendant builds upon a plaintiff’s trade secret — courts should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.
Keywords: trade secrets, intellectual property, remedies
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