Trade Secret Litigation: Why copyright and patent filings should be on your radar?

As part of your initial due diligence in examining a profession tricks case-whether on the violation or defensive-it is very important to confirm whether copyrights or patents have been filed on the same or similar topic as the trade trick in the match. The visibility of either could deal a deadly strike to a plaintiff, or a winning protection. Making the effort ahead of time to evaluate this problem will possibly pay off by either capturing your challenger off-guard, or permitting you to appropriately assist your client comprehends possible debates that can jeopardize their situation in the future. Defense counsel should offer discovery relating to license and also copyright applications to establish whether unsafe disclosure has occurred. Plaintiff’s guidance need to examine these potential disclosures.

Patent applications existing a good possibility to reveal public disclosure since the Patent Act, 35 U.S.C. requires the candidate to divulge the best setting of the creation in addition to make it possible for someone proficient in the art to practice the creation. These legal demands are ripe for causing a candidate to reveal secret information. Also, the Copyright Act, 17 U.S.C., needs deposit of a sampling to get registration. That down payment material might inadvertently have secret information.


In addition to public disclosure, other defenses under Texas legislation consist of revealing that the secret information was created independently, that access to the secret information was with approval or with proper means, that the details is stale or no longer offered for defense, and that the offender has a certificate or a few other authorization. Dirty hands can be a defense to specific sorts of equitable relief. Nonetheless, public disclosure remains one of the best defenses to these instances, and positions considerable risk to the plaintiff. Offenders will commonly tire numerous avenues to reveal that the details are not protectable due to failing to protect it. Examples include failing to password shield the details, lack of employment and discretion agreements, absence of control over the secret information, lax facilities security, and so on.

Profession secret misappropriation under Texas legislation is developed by revealing of three elements: a profession trick existed; b it was gotten via a breach of a private relationship or uncovered by; and c use of the trade trick without authorization from the plaintiff. Phillips v. Frey, 20 F. 3d 623, 627 5th Cir. 1994 To determine whether a profession secret exists, Texas courts consider 6 factors set forth in the Restatement of Torts in the context of the bordering conditions:

  • the extent to which the details is known outside of the business;
  • the level to which it is understood by workers and also other associated with business;
  • the extent of procedures taken to guard the privacy of the details;
  • the worth of the details to business and to its competitors;