Trade Secrets

Question 1

Prima Facie Case of TS under UTSA

Answer 1

1. establish the existence of a TS
2. ∆ acquired knowlede of TS as a result of Confidental relationship
3. ∆ made unauthorized use or disclosure

Question 1

Elements of a TS

Answer 1

1. information
2. independent economic value
3. not generally known/readily ascertainable by improper means
4. Subject of Reasonable efforts to protect

*tangible is helpful, not required.
*agreement defining it is helpful, not dispositive

Question 2

What constitutes “information” when proving a TS

Answer 2

can be a compilation, generally not customer lists: must be something in addition to just names, can be affirmative (recipe or formula) or negative (what not to do)

Question 3

Evaluation of “not generally known”

Answer 3

done on a case by case basis based on the value, size, and sophistication of parties

Question 4

Evaluation of reasonable efforts

Answer 4

evaluated under the circumstances, taken into account relationship and sophistication of parties

Question 5

What constitutes “misappropriation” of a TS

Answer 5

acquisition, disclosure, use

Question 6

what constitutes acquisition of TS

Answer 6

MUST BE BY IMPROPER MEANS
- includes a breach or inducement of breach of FD

Question 7

What constitutes disclosure or use of a TS

Answer 7

• disclosure or use
• without express or implied consent,
• by a person who:
• used improper means OR
• knew or had reason to know it was:
• from someone who had improper means OR
• acquired from or through someone who had a duty of secrecy
• derived from or through a person who owed duty

reverse engineering alone is not enough

Question 8

Special Defenses under UTSA

Answer 8

basically disprove any PF + consent, disclosure
* generally known
* no reasonable efforts
* independently developed
* reverse engineered
* π disclosed it
* π implied consent
* no independent economic value

Question 9

Generic/Equitable Defenses under UTSA

Answer 9

• laches
• estoppel
• unclean hands
• “memorization defense” (weak; someone who intenitonally memorizes a TS is likely still liable)

Question 10

Remedies under UTSA

Answer 10

injunctive relief
- mandatory or prohibatory
- TRO
- Prelim
- permanent
damages

Question 11

UTSA vs DTSA

Answer 11

• DTSA is more elaborate, broader but less specific.
• DTSA grants FQJ without preempting state claims
• DTSA prohibits injunctions that prohibit a person from obtaining employment
• both allow for injunctive relief and damages

Question 12

Vicarious Liability

Answer 12

majority rule is that UTSA covers vicarious liability
minority rule is that it does not