About four months ago, to some fanfare, a handful of legislators in Congress introduced a bill called the Defend Trade Secrets Act of 2015. The bill seeks to create a private right of action allowing companies to assert civil trade secret misappropriation claims under federal law (which would supplement the existing patchwork of state law remedies). What has happened to the bill since then? Is there still a chance that it could be signed into law?
Upon introduction, the respective versions of the bill, H.R. 3326 and S. 1890, were referred to the Judiciary Committees of the House and Senate. Since then, there has been a steady stream of co-sponsors signing on in support of the bill, including 95 Representatives and 16 Senators as of the date of this blog post. On October 1, 2015, the House bill was referred to the Subcommittee on Courts, Intellectual Property and the Internet. On December 2, 2015, the Senate Judiciary Committee held hearings regarding the Senate bill. So the Defend Trade Secrets Act has some momentum.
The proposed legislation is not without its critics, however. In a November 17, 2015 letter to Congress, over 30 law professors raised a variety of concerns regarding the Defend Trade Secrets Act, including many that were previously raised in opposition to the 2014 version of the Defendant Trade Secrets Act. They argue that the latest bill does not address cyber-espionage directly and rather is “likely to create new problems that could adversely impact domestic innovation, increase the duration and cost of trade secret litigation, and ultimately negatively affect economic growth.”
It appears that Congress’ consideration of the Defend Trade Secrets Act will continue at a deliberate pace, extending well into 2016. We will continue to monitor the bill and provide updates as warranted.