For companies emphasizing protection of their trade secrets as a key element of their business model – which should be all companies, irrespective of whether they have a patent portfolio or consider themselves ‘high tech’ – the new federal Defend Trade Secrets Act of 2016 is a sea change in the legal environment, and probably the business environment. The ability to (i) stop trade secret misappropriation in federal court as opposed to much less efficient state courts; (ii) obtain seizures of goods based upon such action without a traditional adversary hearing and (iii) obtain attorney fee and enhanced damage recovery, greatly strengthens the hand of those relying on trade secrets in addition to or instead of patent protection. 

Those wishing to retain the ability to take full advantage in any litigation which may result of the rights granted by the new law must today provide all employees with written notice of their rights to make certain disclosures in a good faith effort to prevent or redress wrongdoing. The consideration of the potential benefits of each alternative will usually requires discussion with an IP lawyer who is well versed in the new law and possibly with an employment lawyer who is versed in whistleblower issues.