If the eye-popping damages awards in several recent lawsuits are any indication, companies are increasingly coming to see their private information as one of their most valuable assets—and California juries apparently agree. For example, last November, a Santa Clara County jury awarded $223 million in ASML US v. XTAL, which may increase after the court rules on punitive damages. But unlike patents or copyrights, where there’s a formal government process and documentation defining the scope of the ideas that are protected, trade secrets are protected only by the trade secret owner’s efforts to keep the information secret. In the words of the U.S. Court of Appeals for the Fourth Circuit, “one ‘owns’ a trade secret when one knows of it, as long as it remains a secret,” see DTM Research v. AT&T, 245 F.3d 327, 332 (4th Cir. 2001).

The lack of a formal document or process that defines the property interest for trade secret owners has raised a question over who, exactly, has enough “ownership” of a trade secret to have standing to sue for misappropriation. Yet California courts haven’t yet reached this seemingly basic issue.

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