With the enactment in 2016 of the Defend Trade Secrets Act and corresponding increase in federal court trade secrets litigation, many high-profile trade secrets cases making headlines in recent years, such as Waymo v. Uber, initiatives like the federal government’s crackdown on China backed trade secrets theft, as well as trends like the decimation of software and diagnostic medical testing patents in the wake of U.S. Supreme Court’s landmark decision in Alice v. CLS Bank International, and the efforts by certain states and potentially even the Federal Trade Commission (FTC) to cut back on the enforceability of restrictive covenants, it would be surprising if anyone were unaware of the increasing importance of trade secrets to all businesses. Indeed, if you hadn’t gotten that message, articles have been legion since the advent of COVID-19 about how businesses need to take steps during this time of widespread remote work to enhance their trade secret protection efforts.
So why another article on enhanced measures to protect trade secrets? Because it appears that message still hasn’t made it through to many businesses, and the many recent articles on this topic tend to focus primarily on enhancing cybersecurity and increasing employee training— not on developing protective measures that are sufficiently comprehensive enough to provide robust trade secrets protection. Traditional methods of trade secrets protection include employee agreements including noncompetes; cybersecurity; other confidentiality agreements including with business partners; and investigation and enforcement in the event of a suspected incident. In more recent times, as is evident in the many articles on protecting trade secrets during COVID-19, companies and their lawyers are aware that a certain amount of employee training is also required—to ensure that the employees are at least thinking about the need to protect trade secrets and to explain and promote the company policies and procedures with regard to physical and cyber protection. However, these measures—while important and necessary—are not alone sufficient for effective protection. Instead, a comprehensive trade secrets protection program that extends beyond the basics and draws upon interdisciplinary resources within the company, developing business processes and a culture around trade secrets protection, is required.
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