The White House recently announced its “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” (February 2013). At 131-pages, it’s packed full of information from a lesser-known agency, the Defense Security Service, which builds on industry reports to develop analytical assessments of threats to U.S. information and technology.
The current report describes threats to national trade secrets as “persistent, pervasive, and insidious.” Among its “Key Findings,” the strategy report identified the top, most targeted technology categories for FY2011 as information systems, lasers, optics, sensors, aeronautics systems, electronics, armaments, and energetic materials.
The report caught enough media attention to grab the attention of many offices the critical importance of the protection of trade secrets as part of intellectual property.
The trade secrets case tends to involve theft of confidential information through which a business can gain economic advantage over competitors or customers. A trade secret is not generally known to the public, and typically involves some affirmative effort by a company to preserve its proprietary nature.
The classic example of trade secrets is the “cola wars” between Coke and Pepsi. In the telling of these narratives, the word “vault” is often interjected, whether literal or symbolic, to represent the lengths to which a corporation will go to protect its most valuable secrets – the cola formulas and the famed “Ingredient X.”
In addition to riveting fact patterns, trade secret cases typically involve a clash of the experts. Testimony from trade secret experts can reveal cunning through reverse engineering, clandestine employee poaching, and outright industrial espionage. In many ways, the trade secret expert is the witness who provides the narrative of what it is that was done to breach the vault, steal the secret, and put it into play for the competitor’s financial gain.
The trade secret expert can also satisfy the requirements of the prima facie case. For example, charges of violation of a trade secret filed by the government might require proof of three elements under the Economic Espionage Act. In such a case, the trade secret expert might testify that the information is not readily available to the public, that the owner took reasonable steps to preserve its secrecy, and that an independent economic value arose while the secrecy was maintained.
In response, the trade secret expert for the defense can try to establish general access to the information, weak security reflective of a lack of concern at the top, more than one employee sharing data with more than one third party, failing to impose NDAs on contractors, and more.
Whether your firm already handles trade secret cases or would like to offer this service, make Forensis Group your trusted partner in selected trade secret expert witnesses as part of a joint Mission Possible.
By: Paloma A. Capanna, Attorney at Law