INTRODUCTION Contributed by: Simon Bushell, Gareth Keillor and Maitreyee Dixit, Seladore Legal
International Considerations Protecting trade secrets internationally contin - ues to be dynamic and unpredictable. Courts in the USA are just beginning to grapple with issues of liability and damages based on con - duct occurring overseas, while many foreign jurisdictions are themselves still developing their trade secret jurisprudence. Global businesses must navigate the laws of each country and terri - tory on a case-by-case basis and make informed decisions about how to safeguard trade secrets locally as well as centrally, to ensure that they do not inadvertently lose global protection for failure to comply with a single foreign law. Trade secret owners conducting business in the USA should also not forget that the US Inter - national Trade Commission (ITC) can conduct investigations and recommend prohibitions against importing articles based on the theft of trade secrets. Although there was a long lull in such investigations, there has been a surge in investigations and enforcement actions at the ITC in recent years. As a result, companies doing business glob - ally should stay apprised of the latest develop - ments in litigation involving international parties, whether in the federal court system, at the ITC or globally – that part, the authors assure you, is not a secret.
trum of offensive and defensive resources that may be available under statutory and common law misappropriation laws and advise clients accordingly – whether that entails implement - ing procedures for effectively maintaining the confidentiality of trade secrets or minimising the risk of coming into the possession of or using a competitor’s trade secrets. Increasing Prevalence of DTSA Lawsuits In the USA, just as the Uniform Trade Secret Act displaced nearly all state-specific common law misappropriation schemes, providing a theo - retically uniform body of law across the many states, Congress enacted the Defend Trade Secrets Act (DTSA) in 2016, building on earlier federal economic espionage statutes to create a federal system of trade secret law. Now that the first wave of DTSA cases has made its way through the federal courts, greater uniformity and certainty on key issues is beginning to be seen. As explored in this Global Practice Guide, a robust body of case law is developing on topics such as pleading requirements, the required par - ticularity for descriptions of trade secrets in dis - covery, liability based on conduct predating the enactment of the DTSA and allowable measures of damages. The enactment of the DTSA, not surprisingly, has resulted in a significant uptick in federal filings, as trade secret owners seek to benefit from the perceived uniformity and pre - dictability of the federal courts. Moving forward, counsel should keep up to date with the latest developments in DTSA litigation, which is prov - ing to be an indispensable part of every trade secret owner’s toolkit.
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