The Rights of Creative People Under Recently Enacted Federal Trade Secret Protection Law
A recently enacted federal trade secret law provides options for creative people and others looking to protect trade secrets, and enhances your rights under state trade secret law. The recently enacted Federal Defend Trade Secrets Act of 2016, or FDTSA, is the most significant trade secret law development in recent history. The FDTSA provides a federal cause of action for trade secret misappropriation. Anyone who believes his or her trade secrets have been misappropriated can now file an action in federal court under federal trade secret statutes, in addition to state court options. This new federal law affects businesses, employees, individuals and creative works.
Trade Secret Law is Important for Creative People
If you are an employee moving to a competing business, the owner of a business hiring an employee, a business owner or the owner of creative works, it is extremely important to understand what trade secrets are. This may require the advice of an experienced intellectual property attorney who understands trade secret law. In order for a trade secret to be protectable, the owner must be able to demonstrate the means used to keep it secret. If you own information that needs protection, click here Contact Kilgore & Kilgore to request a free initial consultation with a Kilgore & Kilgore lawyer.
Texas Uniform Trade Secrets Act
Be aware that the FDTSA does not preempt state trade secret law. This includes the Texas Uniform Trade Secrets Act enacted in 2013. In most cases, someone bringing trade secret litigation can choose whether to bring the action in federal or state court. Federal and state trade secret statues are similar in most respects. However, they may differ in key parts such as the definitions of trade secrets and trade secret misappropriation. The types of relief available and the length of the statute of limitations may also differ between state and federal statutes.
Trade Secret Definition
Creative people, employees and employers should understand that a protectable trade secret has three basic components. The first component is information. This information could be tangible or intangible, regardless of how it is stored. This includes financial, business, scientific, technical, economic or engineering information. The second component is secrecy. The owner of the information must take reasonable measures to keep the information secret. The third component is potential economic value. That is, information with potential economic value to an owner must be kept secret.
Secrecy is Necessary to Protect a Trade Secret
To understand trade secret law and trade secret protection, it is important to know what information is entitled to protection. Keeping your information secret protects a trade secret. However, it is no longer a trade secret when that information becomes public. Here are some examples of a trade secret. A trade secret may be the confidential recipe for your best Texas chili. A trade secret may be a list of customers who use your landscaping business. A trade secret may include the discounts you give to preferred customers. Just remember that once such information is out in the public domain where anybody can use it to compete with you, such information is no longer a trade secret.
Theft of Trade Secret
State and federal trade secret law provides a cause of action for creative people or others who own trade secrets against any person who misappropriates those trade secrets. The first type of misappropriation is the acquisition of a trade secret by improper means. What constitutes improper means versus proper means is subject to statutory definition and legal interpretation. The second type of misappropriation concerns the disclosure or use of a trade secret. This part of trade secret law is multi-leveled and a bit convoluted. In general, it means someone acquired and used a trade secret by improper means or in violation of a duty.
An Experienced Intellectual Property Lawyer Is Important
If you leave your job to start your own business or go to work for a competitor, or are a creative person with trade secrets, you should understand your rights. For employees, such rights may be defined by non-compete agreements, non-disclosure agreements or severance agreements. Whether you want to protect your trade secrets or wish to understand your rights when moving to a new employer, know your legal options. Learn about Kilgore & Kilgore’s trade secrets practice by clicking here Trade Secret Protection. Learn about Kilgore & Kilgore’s employment law practice and non-compete agreements by clicking here Non-Compete Agreements. To connect with a Kilgore & Kilgore lawyer for a free consultation, click here Contact Kilgore & Kilgore.