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Defend Trade Secrets Act


The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision — which is not incorporated into any state trade secret law — relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a lawsuit. The effect of this cost shifting results in anticompetitive behavior, is ripe for abuse, and offers no added benefit to what is provided via state trade secret causes of action and remedies.

This essay is based on Professor Yvette Joy Liebesman’s presentation at the March 10, 2017 Symposium on “Implementing and Interpreting the Defend Trade Secrets Act of 2016,” hosted by the University of Missouri School of Law’s Center for Intellectual Property and Entrepreneurship and the School’s Business, Entrepreneurship & Tax Law Review.