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Theft of Trade Secrets

Trade secret law protects the trade secret with respect to theft or misappropriation of the trade secret. Theft or misappropriation of a trade secret occurs when one knowingly acquires the secret through improper means or discloses the secret without consent. A trade secret should be clearly marked as such preferably on each page. For example, a hypothetical trade secret may be marked as follows: "ACME Co. Proprietary Secret Information", "ACME Co. Confidential", or "ACME Co. Trade Secret."

The successful plaintiff in a civil action for theft of trade secrets may receive an injunction and an award of damages and attorney's fees as judicial relief. It should be noted that civil action for theft of trade secrets is governed by state law. In this regard, the Uniform Trade Secrets Act (UTSA) is a model law drafted by the National Conference of Commissioners on Uniform State Laws. Statutes modeled after the UTSA have been adopted by 45 states, the District of Columbia and the U.S. Virgin Islands. However, some states, including New Jersey, New York and Texas have not adopted the UTSA. Other states continue to apply common law to trade secrets. Therefore, one should consult an intellectual property attorney regarding current law in a particular state.

Theft or misappropriation of trade secrets is also a federal crime. Conviction for theft of trade secrets can result in a fine of up to $250,000 for an individual (up to $5 million for corporations), imprisonment up to ten years, or both. If the crime is committed for the benefit of any foreign government, instrumentality, or agent, the penalties increase to fines of $500,000 for an individual (up to $10 million for an organization), imprisonment up to 15 years, or both. Thus, federal prosecution permits those who cannot afford to initiate civil litigation against another engaging in the theft of trade secrets to ask that the government bring a criminal action. Although the criminal action will not bring any direct financial relief to the trade-secret owner, the criminal action can result in criminal conviction and punishment of the one who stole the trade secret.

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