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Journal of Intellectual Property Law

Abstract

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of information, and therefore a need for more security and updated protocols and requirements to protect proprietary information. Companies are not sufficiently modifying their security and remote policies, and courts are not taking into consideration the change in the work-from-home landscape when analyzing “reasonable measures.”

This Article proposes that Congress implement a national trade secret registrar which would create a set of standards that companies may follow to protect their trade secrets. If a company follows the standards and submits paperwork attesting it has done so, the registrar will issue a certificate which will afford the company a presumption that it has implemented “reasonable measures” to protect its trade secrets. Adopting this proposal reduces the guesswork that companies must do to protect their valuable trade secrets, and no longer will companies fail to implement important trainings, reminders, or confidentiality agreements—mistakes which could lead to the loss of trade secrets. It will also lead to a more consistent interpretation of the DTSA by courts.

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