Trade Secrets

A “trade secret” can be any information that derives independent economic value from not being generally known or readily ascertainable. Some typical factors that are used to determine whether something is a trade secret include: the extent to which the information is known outside of the business; the extent to which it is known to those inside the business (i.e. by employees); and the precautions taken by the holder of the trade secret to guard the secrecy of the information.

Although most states have legislation addressing trade secrets, trade secret protection typically derives from common law principles and the Uniform Trade Secrets Act (UTSA). The UTSA, which has helped to create a more uniform body of trade secret law between the states, makes it a crime for any Federal employee to knowingly disclose the trade secrets of a private party (18 U.S.C. § 1905); makes it a crime for any U.S. citizen, permanent resident alien, or organization organized under Federal, state or local law to disclose trade secrets (18 U.S.C. § 1832) and increases the penalties if such disclosure is made to a foreign country government (18 U.S.C. § 1833); permits injunctive relief against the United States if there is a threat of knowing or inadvertent disclosure of a trade secret by the U.S. Government; and permits the U.S. Court of Federal Claims to award monetary relief in favor of a private party against the United States for damages resulting from the government's improper disclosure of a trade secret.