The Trade Secret Office, Inc.

Trade Secret Lawsuit Strategy

Unlike patent, trademark and copyright infringement, trade secrets cases are often tried in the aggregate. Where patent, trademark and copyright infringement lawsuits typically allege infringement of a single property, such as one patent, trade secret lawsuits typically allege infringement of a large group of trade secrets. This is partially a result of the fact that trade secrets are not bounded by a disclosure. Partially it is because patent, trademark and copyright infringement cases are fought to protect those intellectual properties where the plaintiff has the strongest case.

This same strategy should apply to trade secrets cases. The temptation to find every trade secret that defendant had access to and may have infringed, and allege infringement of them all, should be resisted. This often produces a weaker case than litigating only over very specific, strong trade secrets.

Consider a case where it can be alleged that the defendant has infringed on one or more suites of trade secrets, totaling in all some 100 pieces of trade secret information. The court will not hear arguments on all one hundred, and the jury will not be able to make informed judgments on what are effectively one hundred separate litigations. Each side will limit itself to arguing a few of the allegations and generalizing to the rest.

Of course, plaintiff's side will argue its strongest allegations, and attempt to generalize these arguments to all of the information. Defendant, though, has been given the opportunity to argue against the weakest allegations, and generalize these arguments to all of the information. Rather than make the case stronger, alleging the entire gamut of possible infringements has seriously weakened plaintiff's case. Limiting the lawsuit to the strongest allegations forces the defendant to argue on his weakest ground.

The question then becomes how to decide which trade secrets are most likely to be determined by the court to meet the six proofs required of plaintiff. How does one determine, prior to filing, what subset of the company's trade secrets meet the criteria of ownership, access and notice, and which are most likely to be found to be trade secrets by the courts?

We are now ready to discuss where The Trade Secret Office^® business method fits into your information protection strategy.