Trade Secret Misappropriation

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

On February 10, the U.S. International Trade Commission (“ITC”) issued a final determination finding South Korean lithium-ion electric vehicle battery maker SK Innovation misappropriated the trade secrets of its Korean competitor LG Chem in violation of Section 337 of the Tariff Act of 1930.  The ITC issued a 10-year exclusion order blocking SK’s imports into the U.S. of lithium-ion batteries and related products, but with substantial exceptions: SK is permitted to continue importing these products specifically for Ford Motor Co.’s EV F-150 program for four years, for Volkswagen of America’s modular electric drive line for two years, and for the repair and replacement of EV batteries for Kia vehicles sold to U.S. customers.  President Biden and his U.S. Trade Representative—Katherine Tai has been nominated but not yet confirmed—now have 60 days to review the ITC’s electric vehicle battery exclusion order, an order that could be seen as in tension with the new administration’s promotion of green energy.

Continue Reading ITC Finds Trade Secret Misappropriation and Bars Electric Vehicle Batteries from SK Innovation—With Exceptions

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

As companies have pivoted to remote-working, it is increasingly important to pay attention to the risks of videoconferencing, particularly when trade secrets are involved. In a recent case, the Delaware Chancery Court ruled that Plaintiffs did not take reasonable steps to protect their trade secrets because they did not implement appropriate privacy measures on their Zoom calls.

Continue Reading Who’s on the Line?: Protecting Your Trade Secrets on Zoom Calls

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

On January 13, the U.S. International Trade Commission (“ITC”) issued the long-awaited public version of its final opinion in the Matter of Botulinum Products (Inv. No. 337-TA-1145), otherwise known as the “Botox case.” As previewed in the ITC’s earlier notice of decision, the ITC’s final opinion affirmed the Administrative Law Judge’s issuance of a 21-month ban on imports and sale of Respondents’ lower-cost alternative to Botox for misappropriation of trade secret manufacturing processes and reversed the finding that Complainant Medytox’s specific strain of botulinum toxin bacteria is a protectable trade secret.

As we previously reported, South Korean company Daewoong Pharmaceutical and its U.S.-based licensee Evolus had been facing a potential 10-year ban of the import and sale of its product, Juveau; however, because the ITC reversed the ALJ’s finding and instead held that the bacterial strain at issue was not a protectable trade secret, the Respondents could not be liable for trade secret misappropriation of the bacterial strain itself. The ITC thus reduced the length of the ban from 10 years to 21 months, accounting for the ITC’s finding that Respondents were liable for theft of trade secrets related to Medytox’s manufacturing process.


Continue Reading Final ITC Ruling in Botox Rival Case Creates More Head-Lines

On December 16, 2020, the U.S. Court of Appeals for the Ninth Circuit held for the first time in Attia v. Google LLC that a misappropriation claim under the Defend Trade Secrets Act of 2016 (“DTSA”) may be brought for a misappropriation that started prior to the enactment of the DTSA as long as the claim also arises from post-enactment misappropriation or from the continued use of the same trade secret.  The decision further expands the reach of the DTSA and provides a blueprint for other courts to rule along the same lines.

The case, which was originally filed in the Northern District of California in 2014, was brought by an architect and his firm against Google under the DTSA, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state trade secret and contract laws for alleged misappropriation of the plaintiff’s “Engineered Architecture” technology.[1] Although the Ninth Circuit affirmed the District Court’s dismissal of the DTSA claim on the grounds that  the architect lacked standing under the DTSA because Google’s 2012 patent applications based on the “Engineered Architecture” technology placed the contested information in the public domain, extinguishing any trade secret claims over it,[2] the Ninth Circuit’s ruling was significant for other reasons, namely the expansion of the DTSA’s potential applicability.


Continue Reading Ninth Circuit Allows Defend Trade Secrets Act Claims for Conduct Predating the DTSA

As the year comes to a close, it’s safe to say 2020 was a year unlike any other and full of lessons to be learned from the COVID-19 pandemic to the growing threat to U.S. intellectual property abroad.

A look back on the 10 most read posts from this past year highlights some key developments