Defense of Trade Secrets Act (DTSA): Revisit Confidentiality Agreements

If your company's standard confidentiality agreements were created prior to 2016, you may be unable to take advantage of what Forbes once called the biggest IP development in years.  Until 2016, there were no federal trade secret protection laws. Rather, trade secret protection fell entirely under the ambit of state law. This changed in 2016 with the passage of the DTSA, a United States federal law that allows an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated. The law also grants legal immunity to corporate whistleblowers.

It notably contains an unusual provision that (in very exceptional circumstances) lets trade secret owners seek, on an ex parte basis (i.e., without telling defendants), an order to seize allegedly stolen trade secret items in the defendants' possession. 

So why does it matter if your agreements are older? Because the DTSA requires that employers must provide notice of the DTSA immunity disclosure “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”

Take a look, and consider an update.

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