On April 20th, U.S. Senator Lindsey Graham, R-S.C. introduced Senate bill S. 1245, “The Combating Chinese Purloining (CCP) of Trade Secrets Act.” The full text of the bill is not yet available, but a press release announcing the legislation highlighted key features of the CCP, including:

  • increasing the maximum penalty from 5 to 20 years of imprisonment for individuals who use “communication interception devices” to aid a foreign government;
  • expanding trade secret misappropriation penalties for foreign persons, including by: the U.S. Customs and Border Protection imposing import restrictions, the U.S. Department of Commerce denying export licenses, the U.S. Patent and Trademark Office rejecting applications for patent protection, and the U.S. Department of State denying visas;
  • creating grounds for inadmissibility and deportability for individuals that seek to enter, or remain in, the U.S. to engage in espionage and intellectual property theft; and
  • prohibiting the issuance of visas to Chinese nationals who present a national security risk and to prevent their pursuit of graduate-level coursework in sensitive fields.


Continue Reading Senator Lindsey Graham’s Proposed Legislation Seeks to Combat “Chinese Purloining” of U.S. Trade Secrets

On March 1st, Florida Governor Ron DeSantis, along with GOP members of the state’s House of Representatives and Senate, announced legislation to address corporate espionage and foreign influence in Florida. In public remarks about the proposed legislation, Florida House Speaker Chris Sprowls expressed concern about the threat of China’s influence on local governments and university systems, stating “that there are no limits to the depths to which other countries, especially China, will go to steal our science and technology.”

Continue Reading Florida Lawmakers Seek to Address Corporate Espionage in Proposed Legislation

We are looking back on our series where we spotlight international issues in trade secret law under the Belgian Trade Secrets Act.

To claim that major conclusions can be drawn from the dozen decisions handed down since the Trade Secrets Act came into force would not be serious. Nevertheless, listing and comparing these rulings has led to some striking observations.

The number of judgments that we found is limited. There are a number of possible explanations for this. A first explanation could be that some parties whose information has been misappropriated since the Trade Secrets Act have not (yet) determined this. This explanation seems to be confirmed by the fact that in several of the cases we have discussed, a period of three to four years elapsed between the facts giving rise to the claim and the first step taken by the claimant against the alleged infringer.[vii] The limited number of judgments may also be partially explained by the fact that even parties who have established infringement may have subsequently realized how many hurdles there are to bringing a successful claim under the Trade Secrets Act. Finally, it seems that there may well be a significant number of potential claimants who, though being aware of infringement and willing to overcome the hurdles, possess insufficient evidence to demonstrate that the infringer misappropriated their secret information. Although the possibility of a unilateral application through summary proceedings was discussed, a statutory scheme like that for intellectual property rights (the counterfeit search and seizure procedure) would probably allow for smoother gathering of evidence.


Continue Reading International Issues in Trade Secret Law Series: A Look Back at Issues Under the Belgian Trade Secrets Act

In our prior post, we discussed under what conditions business information could qualify as a trade secret under Belgian law (it must be secret, have commercial value, and be subject to reasonable protection measures).

Today’s post, which is the fourth in our series where we spotlight international issues in trade secret law, looks at two other critical questions:

1) Is the use of a trade secret per se unlawful?

Even if it can be successfully demonstrated that the information at issue meets the cumulative conditions of Article I.17/1 Belgian Economic Code and is thus protected as a trade secret, this does not necessarily mean that it has been used unlawfully. The owner of the trade secret must hence demonstrate that their trade secret has been unlawfully used by a third party. The discussion will often revolve around the unauthorized access to the trade secret, as provided for in Article XI.332/4 Belgian Economic Code. This is certainly the case when the party accused of misappropriation is an ex-employee or an independent service provider of the trade secret holder, who gained access to the information in question during their employment or assignment.


Continue Reading International Issues in Trade Secret Law Series: Unlawful Use and Burden of Proof for Trade Secret Misappropriation under the Belgian Trade Secrets Act

Today’s blog is the third in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act. (See our first post here and our second here.)

Today’s post addresses two questions:

1) When does information have trade value?


Continue Reading International Issues in Trade Secret Law Series: Valuing and Taking Reasonable Measures to Protect Trade Secrets under the Belgian Trade Secrets Act

Today’s blog post is the second in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act.

Today’s post addresses two questions:


Continue Reading International Issues in Trade Secret Law Series: Substantive Jurisdiction and Trade Secret Status under the Belgian Trade Secrets Act

Today’s blog post is the first in a series where we spotlight international issues in trade secret law, in particular, answering practical questions and providing insights into the application and interpretation by Belgian courts of specific aspects of the Belgian Trade Secrets Act.

On August 24, 2020, a dedicated few celebrated the second anniversary of the entry into force of the 2018 Belgian Trade Secrets Act.[i] With this new law, the Belgian legislator transposed the 2016 EU Trade Secrets Directive[ii] into national law. The Trade Secrets Directive is the result of a European Commission regulatory initiative, taken after a number of issues were revealed by studies conducted at its request.[iii] In particular, it was found that EU Member States lacked a uniform approach to trade secrets and that some of them had very limited trade secrets protection, which in turn hindered innovative cooperation between companies across the EU. In addition, trade secrets were perceived as important assets for companies in terms of innovation and competitiveness. This was particularly true for SMEs which, given their more limited resources, attach greater importance to trade secrets than to other, generally more expensive, forms of protection (such as patents). The need for effective and coherent protection had thus increased significantly in recent years, partly because of an increased risk of misappropriation and abuse of confidential business information. The Trade Secrets Directive aimed to harmonize the rules across the EU and to ensure that companies could rely on both substantive and enforcement provisions, with the ultimate goal of achieving an adequate and consistent level of civil measures to protect trade secrets throughout the internal market.[iv]  The Belgian Trade Secrets Act and its application in case law should be seen in this specific context.


Continue Reading International Issues in Trade Secret Law Series: Parties and Procedural Options under the Belgian Trade Secrets Act

On December 20, 2020, the US Senate unanimously passed a new bipartisan bill designed to punish foreign individuals and corporations involved in intellectual property theft.

The Protecting American Intellectual Property Act was co-authored by Sen. Ben Sasse, R-Neb., and Sen. Chris Van Hollen, D-Md.  The bill requires a report to Congress every six months identifying:

  • any individual or firm that has engaged in, benefitted from, or materially assisted the significant theft of U.S. trade secrets, if that theft constitutes a major threat to the national security, foreign policy, economic health or financial stability of the United States; and,
  • the chief executive officers and board members of the reported firms and whether those individuals have benefitted from the significant theft of U.S. trade secrets.


Continue Reading Senate Passed New Legislation to Punish Foreign Individuals and Corporations for IP Theft

Virginia recently joined a growing list of states that have passed legislation prohibiting employers from enforcing non-compete agreements against low-wage employees.  Illinois, Maine, Maryland, Massachusetts, New Hampshire, Rhode Island, and Washington have already enacted similar legislation.  And as we previously posted, similar legislation was introduced in the United States Senate nearly a year ago, though it did not advance.  The trend reflects recognition among policy makers that non-compete agreements may unfairly restrict low-wage workers, who generally have limited bargaining power with respect to employers, from seeking new employment opportunities.

Continue Reading Virginia Joins States That Restrict Use of Non-Compete Agreements

When does a cause of action come close enough to a trade secret claim to become preempted by the California Uniform Trade Secrets Act (“CUTSA”)? CUTSA preempts statutory and common law claims “based upon misappropriation of a trade secret.” In other words, with some exceptions, claims predicated on trade secret misappropriation allegations may only be asserted through a CUTSA claim.

California courts have articulated two different CUTSA preemption tests: (1) the “common nucleus” test and (2) the “dependence” test. In many cases, the two tests will yield the same result. Sometimes, however, the tests will produce divergent outcomes.
Continue Reading Two Tests for Trade Secret Preemption under California Law