INTELLECTUAL PROPERT Y
Covid-19 and Intellectual Property Protection By TIM HUDSON AND EMILY W. MILLER
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rade secret litigation is rising. Following the enactment of the Defend Trade Secrets Act in 2016, protection for trade secrets was placed on par with federal protections for other intellectual property — but without the risks and hurdles associated with registration and disclosure. According to a report on trade secrets litigation by Lex Machina, trade secret case filings in federal court increased 30 percent between 2015 and 2017 following the passing of the Defend Trade Secrets Act. Employee turnover and mobility, the digital world, and the framework of statutory protections will inevitably result in trade secret litigation for years to come. Adding to those factors, the onset of the Covid-19 public health crisis rushed companies into unprecedented
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circumstances, with increased risk of loss of confidential information. Historically, employers were mostly concerned with employees leaving with hard copies of documents containing trade secrets and handing them over to a competitor. In the digital age, however, employers became increasingly concerned about the theft of electronic versions of trade secrets. Due to the remote workforce made necessary by the pandemic, employers are balancing the need to protect trade secret information with their employees’ need for access to those trade secrets to perform their duties. Additionally, there can be eavesdroppers on video conferences where confidential information is discussed. This results in greater risk and more opportunities for trade secrets escaping protections
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implemented by companies. Knowing what trade secrets are is a critical first step in formulating a plan of protection. Trade secrets can include many different types of information, for example, formulas, product specifications, manufacturing methods, source codes, marketing strategies, customer or supplier lists, and pricing information or cost structure. To qualify as a trade secret, information must give its owner a competitive advantage over competitors, not be generally known or readily ascertainable to the public, and derive economic value from its confidential nature. Companies should inventory their trade secrets — identifying what the company considers a trade secret and assessing whether any new or additional information should also be designated BACK TO CONTENTS
