Trade Secrets — AffirmativDefensens— - Lawful Means of Acquisition is a legal defense used to protect trade secrets from illegal acquisition. A trade secret is a type of confidential business information that has economic value and is not generally known to the public. Trade secrets are valuable intellectual property that must be kept secure to maintain their value. The affirmative defense of lawful means of acquisition is an argument used to protect trade secrets from improper acquisition. This defense is used when an accused party can show that they acquired the trade secrets from a lawful source, such as a publicly available document, a confidential disclosure from an employee, or a properly licensed agreement. There are three main types of lawful means of acquisition for trade secrets: 1. Reverse engineering: Reverse engineering is a process of taking apart a product to learn how it works and using that knowledge to create a similar product. This method is considered lawful as long as the starting material is lawfully obtained. 2. Independent development: Independent development is when a person or company independently creates a product without using any protected information. This method is considered lawful as long as the person or company did not use any confidential information to develop the product. 3. Properly licensed agreement: A properly licensed agreement is when a person or company is legally granted access to confidential information through a written agreement. This agreement must be properly executed and the confidential information must be clearly identified in the agreement.
Trade Secrets - Affirmative Defense - Lawful Means of Acquisition
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FAQ
Preemption issues? DTSA Section 2(f) states that DTSA does not preempt any law. Specifically, it states- ?Nothing in the amendments made by this section shall be construed to modify the rule of construction under section 1838 of title 18, United States Code, or to preempt any other provision of law.?
DTSA claims may be brought in either state or federal court. A state court action may be removed to federal court, pursuant to federal question jurisdiction. As with many federal statutes, there is a question regarding the DTSA's extraterritorial application.
Trade secrets are protected by a combination of state and federal laws, which prescribe a combination of civil and criminal penalties for trade secret ?misappropriation??the improper acquisition, disclosure, or use of a trade secret.
To assert an affirmative defense against trade secrets theft or misappropriation, the defendant has to show that the trade secret information was not acquired through improper means but by either independent invention or reverse engineering.
Preemption issues? DTSA Section 2(f) states that DTSA does not preempt any law. Specifically, it states- ?Nothing in the amendments made by this section shall be construed to modify the rule of construction under section 1838 of title 18, United States Code, or to preempt any other provision of law.?
Until recently, civil trade secret cases were governed by state law, not federal law. All U.S. states except Massachusetts and New York have adopted the Uniform Trade Secrets Act, an act developed to enable consistency among the various states.
114?153 (text) (PDF), 130 Stat. 376, enacted , codified at 18 U.S.C. § 1836, et seq.) is a United States federal law that allows an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated. The act was signed into law by President Barack Obama on .
secret defendant's best strategy is to show it only used its own or public information. Independent development is a complete defense to misappropriation because it destroys the plaintiff's third required showing.