The Case Against Federalizing Trade Secrecy

Article — Volume 101, Issue 2

101 Va. L. Rev. 317
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Trade secrecy is unique among the major intellectual property (“IP”) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors—including legislators, academics, high-technology firms, and organizations representing IP attorneys and owners—have supported the creation of a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime for IP rights.

This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of the states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach—a modest expansion of federal courts’ jurisdiction over state law trade secret claims—that can help address the issue of trade secret theft without requiring outright federalization.

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  Volume 101 / Issue 2  

The Changing Face of the Supreme Court

By A. E. Dick Howard
101 Va. L. Rev. 231

The Case Against Federalizing Trade Secrecy

By Christopher B. Seaman
101 Va. L. Rev. 317

Contaminated Confessions Revisited

By Brandon L. Garrett
101 Va. L. Rev. 395

The Significance of Parental Domicile Under the Citizenship Clause

By Justin Lollman
101 Va. L. Rev. 455