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Imagine that your company has invested many years and many millions of dollars in developing a breakthrough technology. Imagine also that intellectual property associated with that undertaking walks out of your company’s doors and surfaces at a university in China, where your company’s inventive technology could be used to pose a competitive threat to your company’s products. Now what?
For one company, DuPont, no imagination is needed to envision the aforementioned scenario—a former employee stole trade secrets related to proprietary organic light-emitting-diode display technology valued at $400 million and passed them to a Chinese university. The offending employee was caught and convicted for his crime, but DuPont was hardly made whole. The Chinese university could not “unlearn” the DuPont trade secrets it had received, and the former employee could not come close to compensating DuPont for its loss. Thus, the federal prosecution of the employee was only a partial remedy.
The DuPont incident and the others like it that are sprouting up across the globe raise an important question: Aside from criminal prosecution, what can corporate victims of international cybercrime do to recoup, or at least mitigate, their losses? Given the current state of the law and the jurisdictional limits of federal courts, the answer may surprise you.